Skip to content


S. Rm. Ar. S. Sp. Sathappa Chettiar Vs. Ar. Rm. Umayal Achi and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberS.C. Petn. No. 17 of 1959
Judge
Reported inAIR1959Mad391
ActsConstitution of India - Article 133(1); Code of Civil Procedure (CPC) , 1908
AppellantS. Rm. Ar. S. Sp. Sathappa Chettiar
RespondentAr. Rm. Umayal Achi and anr.
Appellant AdvocateK.V. Venkatasubramania Iyer and ;P.S. Sarangapani Aiyangar, Advs.
Respondent AdvocateV. Thiagarajan, Adv. for T. Venkatadri, Adv.
DispositionPetition dismissed
Cases ReferredNagpur High Court. In Deoki Nandan v. State of U. P.
Excerpt:
.....before supreme court - as per article 133 (1) for appeal before supreme court certificate of high court that appeal involves some substantial question of law is essential - court opined that statement of facts in petitioners suit was flimsiest gossamer - petition dismissed. - - 5. one of the cardinal principles of construction is that the 'words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view' (maxwell on interpretation of statutes, 10th edn. in regard to suits tried on the original side or (he high court, that object would be defeated if we hold that the trial judge cannot be regarded as-a court immediately below the high..........a division bench would be of less significance than concurrent findings recorded by a subordinate judge and judges constituting a division bench. that is a clear indication that, in the case, we should look not at the plain wording meaning of the words used but at the properties which (he words connote.in relation to a suit tried on the original side-of the high court, what is material is that the court is a court of first instance. that it is not a court below the court of appeal is an accidental circumstance. on principle, therefore, it seems to us that the words 'the court immediately below' in relation to the high court on the original side, when it is presided over by a single judge, are the equivalent of the words 'the court of first instance' occurring in the same article, and.....
Judgment:

Subrahmanyam, J.

1. The petitioner, as plaintiff, instituted C. S, No. 311 of 1951 on the file of this Court. It was dismissed OH 22-9-1953 by Ramaswami Gounder J. sitting on the original side of this court. The petitioner's appeal from that judgment and decree, viz., O. S. A. No. 2 of 1958 was dismissed by us sitting as a Division Bench of this Court on 23rd January 1959, The Petitioner applies that a certificate be granted to him under Article 133 of the Constitution to enable him to appeal to the Supreme Court from the judgment and decree pronounced in O. S. A. No. 2 of 1958,

2. Article 133(1) of the Constitution (so far as material) is in these terms:

'Article 133(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject matter of the dispute in the court of first instanceand still in dispute on appeal was and is not less than twenty thousand rupees ....or

(b) ..... or

(c) that the case is a fit one for appeal to the Supreme Court;and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.'

3. It is beyond question that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20,000. Petitioner's learned counsel says that that is by itself sufficient to enable him to appeal to the Supreme Court against the judgment in O. S. A. No. 2 of 1958 and requests us to say so. His contention is that although the judgment affirmed the decision of Ramaswami Gonnder J. his decision cannot be said to be the decision of the court immediately below the court constituted by 'lie Division Bench of the High Court and that, therefore, it is not necessary for the petitioner to have a further certificate that the appeal involves some substantial question of law. If, on the other hand, we take the view that the High Court in its original side should be regarded as a court immediately below the High Court on the Appellate Side, the petitioner's Yearned counsel requests that we certify that the appeal he proposes to institute involves a substantial question of law.

4. The first question for decision is whether the High Court on is original side, when a single Judgepresides over it, is a court immediately below the High Court on its appellate side for the purposes of Article 133(1) of the Constitution. From the decision of a single Judge sitting on the original side of the High Court, a party aggrieved has a right of appeal to the High Court under Clause 15 of the Letters Patent. But, notwithstanding that incident of the applicability of his judgment to the appellate side of the High Court, the court over which a Judge sitting on the original side presides is the High. Court and not a court other than the court which hears the appeal from his decision.

All the powers of the High Court as a court of record and as the highest court in the State are his when he presides over the original side in no less a measure than when he presides on the appellate side. Since the High Court on the original side and the High Court on the appellate side form together the High Court, there is no room, technically speaking, or the application of the words 'court below' in regard to the trial of a suit in the High Court and the appeal from the decision to the High Court.

The division into 'original' and 'appellate' is a division by a vertical, and not by a horizontal line. But it is none the less true that the High Court trying a suit on the original side is the court of first instance in relation to that litigation. Article 133(l)(a) uses the words 'the court of first instance' The latter part of Article 133(1) uses the words the court immediately below.'

While the High Court on the original side cannot be said, in the ordinary course of those words, to be immediately below the High Court on the appellate side, the High Court may properly be said to be at the same time the court of first instance and the court of appeal. The point for decision thus resolves itself into whether, in relation to the original side of the High Court, the expression 'the court immediately below' in. Article 133(1) should not be construed as the equivalentof 'the court of first instance' occurring in the-' same Article.

5. One of the cardinal principles of construction is that the 'words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view' (Maxwell on Interpretation of Statutes, 10th Edn. p. 52). In construing the provision of a Constitution, particularly, the principle, viz-, that the object to be achieved should be constantly kept in mind, is of overriding importance. It is on that principle that several guide posts in the field of constitutional law the doctrine, for example, 'the pith and substance of an enactment' with a view to decide under what category of subjects of legislation the enactment falls-- stand firmly rested. As one writer puts it, the thing to do in construing the words used in a Constitution is 'to pick out the properties which the words connote.'

6. Let us consider the object sought to be achieved by the clause in Article 133(1) which provides that, if the judgment appealed from affirms-the decision of the court below, the High Court should certify that the appeal involves some substantial question of law. Obviously, the authors of the Constitution consider that, if the trial judge and the Division Bench of the High . Court sitting: in appeal, arrive at concurrent findings on the matter in issue, there should be no appeal to the Supreme Court unless a substantial question of law is involved.

In regard to suits tried on the original side or (he High Court, that object would be defeated if we hold that the trial judge cannot be regarded as-a court immediately below the High Court on the-appellate side. In the case before us, the suit in-stituted by the plaintiff might have been instituted in the court of Subordinate Judge Devakottai. If he had done so and the subordinate Judge had pronounced judgment dismissing the suit and a Division Bench, of this court affirmed the decision of the Subordinate Judge, there would be no further appeal to the Supreme Court unless. The High Court certified that the appeal involved some substantial question of law.

But the suit was instituted and tried on-the original side of the High Court. If we place on the words 'the court immediately below' their ordinary meaning, and hold that the court on the original side is not a court below the High Court on the appellate Side, there would be a right of appeal to the Supreme Court from the judgment pronounced by the Division Bench, notwithstanding that the appeal may not involve any substantial question of law.

That is to say, concurrent findings record of by a Judge on the original Side and by Judges constituting a Division Bench would be of less significance than concurrent findings recorded by a Subordinate Judge and judges constituting a Division Bench. That is a clear indication that, in the case, we should look not at the plain wording meaning of the words used but at the properties which (he words connote.

In relation to a suit tried on the original side-of the High Court, what is material is that the court is a court of first instance. That it is not a court below the court of appeal is an accidental circumstance. On principle, therefore, it seems to us that the words 'the court immediately below' in relation to the High Court on the original side, when it is presided over by a single judge, are the equivalent of the words 'the court of first instance' occurring in the same Article, and that, for theI purposes in that Article, the High Court on the original side, when it is presided over by a single judge, should be regarded as the court immediately i below the High Court on the appellate side.

7. Were the matter historically considered, the conclusion, in our opinion, would be the same. The Privy Council did not entertain appeals from judgments of High Courts in cases where such judgments affirmed the decisions of the trial Judge on the original side of the High Courts in what were then the presidency towns of Madras, Bombay and Calcutta. In Tulsi Prasad Bhakt v. Benayak Misser, ILR 23 Cal 918, the Privy Council had to consider an appeal preferred from the decree of the High Court of Calcutta on the appellate side. In holding that the appeal could not he entertained, their Lordships said:

'Their Lordships think, that no question of law, either as to construction of documents or any other point arises on the judgment of the High Court, and that there are concurrent findings of the two courts below on the oral and documentary evidence submitted to them.' Neither in the argument of the appellant's counsel nor in the judgment of their Lordships was any doubt cast on the proposition that the High Court, in trying the suit on the original side, was the court immediately below the High Court on the Appellate Side which decided the appeal. In Probhawati v. Panmal, 45 C.W. N. 1002, a Bench of the Calcutta High Court considered an application for leave to appeal to the Privy Council from a judgment of the High Court which had affirmed the decision of the High Court on its original side presided over by McNair J. The petitioner's Counsel argued that the High Court was one court, and, therefore, there was no such thing us a court immediately below the Appellate Bench of the court. In regard to that argument, Derbyshire C. J. said:

'That is a new argument to me and it seems to me that it is contrary to the usage that has prevailed with regard to the word 'court' in this particular respect. For instance, in the case of Abdul Rahman v. D. K. Cassim and Sons, GO , Sir George Lowndes, referring to the Rangoon High Court said:

'It does not appear, however, to have been objected before the Appellate Court that the question was not open to the first respondent, or that they had ceased to be parties to the suit before the decree of the trial judge was made, and their Lordships are not prepared now to take any account of the very apparent irregularities in the trial court.'

The trial court is clearly the court below the Appellate Court and I see no reason why Mr. Justice McNair, sitting as he was, was not the court immediately below the Bench which has heard the appeal from him.

That being so and the order appealed from being one of affirmance, and no question of 'law arising (because in each case the court exercised its discretion upon the facts which were before it in determining the amount in respect of the marriage), I am of the opinion that no certificate of fitness for leave to appeal to His Majesty in Council can be granted in this case. This application is, therefore, dismissed with costs.'

8. The Constituent Assembly, when it framed the Constitution knew that, in relation to judgments pronounced on the Original Side of the High Court, it had been held that the High Court on the Original Side was the court immediately below the Court on the Appellate Side. The inference is that the Constituent Assembly in-ended in regardto suits heard on the Original Side of the High Court that the expression 'the court immediately-below' in Article 133(1) of the Constitution should include the High Court in the exercise of its original jurisdiction,

9. The proposition that, for the purposes of Article 133(1) of the Constitution, the High Court on the original side is a court immediately below the-court on the appellate side does not by any means-entail the consequence that the High Court on the Original Side is a court subordinate to the High Count on the appellate Side, or that the orders passed by the High Court on the Original Side are liable to be revised or otherwise interfered with in the exercise of the revisional or supervisory jurisdiction of the High Court under Article 227 of the-Constitution or Section 115 of the C. P. C.

The legal position on that matter is, if we may say with respect, clearly explained in Sahaba Rcddi v. Venkata Keddi, and In re. A. K. D. Rangaswami Raja : AIR1957Mad582 . Our finding that the High Court on the Original Side, is, for the purposes of Article 133(1), a com-; immediately below the High Court on the Appellate Side is based substantially on the view that, in relation to the High Court, the words 'the court immediately below' should be construed as the equivalent of the words 'the court of first instance' used in the same article. That argument would not be applicable to a judgment pronounced in appeal by a Judge of the High Court sitting singly.

In such a case, there may be an appeal to a Division Bench of (he High Court. Although that: question does not arise in the present petition, we think it necessary to state that our finding that' the High Court on the Original Side, when presided over by a single Judge, is the court immediately below the High Court on the appellate Side, does not involve the further proposition that the High Court, I when presided over by a single Judge, and exercising its appellate jurisdiction, would be a court' immediately below the Division Bench of the High' Court, to whom an appeal may be preferred from-the appellate judgment of the single judge.

On that question, we find ourselves, with respect, in complete agreement with the views expressed in Debendranath Das v. Bihudhendra Mansing, ILR (1916) Cal 90: AIR 1916 Cal 973 and by Din Mohammarl and Abdur Rahman JT., in Wahid Uddin v. Makhan Lal, AIR 1944 Lah 458. Where, in a litigation, the High Court is at once the court of first instance and the court of appeal, there is no other court which may be considered to be the court immediately below the High Court. In-such a case, the object sought to be achieved by Art, 133 requires us to hold that the expression-'the court immediately below' includes the High Court on the Original Side.

But, where a single Judge of the High Court hears an appeal from a subordinate court, there is that other court which is immediately below the-High Court, and the Reason for holding that a single Judge sitting on the Original Side is immediately below the Division Bench on the Appellate Side disappears. The correct thing in that case is to regard the words 'the court immediately below' as connoting the properties of separateness and subordination and as referring only to the court from whose judgment an appeal is preferred to the High Court.

10. On the question whether a judge sitting-singly exercising appellate jurisdiction, represents a court immediately below the Division Bench which hears an appeal from his judgment, a view different from the views expressed in ILR (1916) Cal 90: AIR 1916 Cal 973 and AIR 1944 Lah. 458, was expressed by the Nagpur High Court in Kishanlal v. Vithal, (S) AIR 1956 Nag 276. Although, as we said, the question does not arise directly on this application, we are in agreement with the views impressed by the Calcutta and the Lahore High Courts, and are unable, with respect, to agree with the view taken by the Nagpur High Court. In Deoki Nandan v. State of U. P., : AIR1959All10 , a view directly to ours has been taken. We have considered that judgment with care and are unable, with respect, to agree with the views expressed therein.

11. We hold, that, for the purposes of Article 133(1) of the Constitution, the High Court on the Original Side presided over by a single Judge is the court immediately below the High Court on the Appellate Side.

12. The question then arises whether the proposed appeal involves some substantial question of law. Far from there being any substance, we are clearly of opinion that a bare statement of the facts would make it apparent that the plaintiffs suit is woven out of the flimsiest gossamer.

(Their Lordships after dealing with the facts ofthe case, held that the appeal does not involve asubstantial question of law and dismissed the petition.)


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //