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Gundapuneedi Veeranna and ors. Vs. Gundapuneedi China Venkanna and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 2556 of 1952
Judge
Reported inAIR1953Mad878; (1953)IIMLJ317
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110; Constitution of India - Articles 133, 133(1), 134, 135 and 374(2); Federal Court (Enlargement of Jurisdiction) Act, 1947 - Sections 3; Abolition of Privy Council Jurisdiction Act, 1949 - Sections 5
AppellantGundapuneedi Veeranna and ors.
RespondentGundapuneedi China Venkanna and ors.
Appellant AdvocateK. Bhimasankaran, Adv.
Respondent AdvocateP. Somasundaram and ;C.V. Dikshitalu, Advs.
Cases ReferredLachmeswar v. Keshwarlal
Excerpt:
constitution of india, articles 133(1), 134 and 135--code of civil procedure (act v of 1908), section 110--adaptation of laws order, 1950, section 3--practice--right of appeal as on date of filing suit--vested right--exceptions--judgment in appeal by high court after constitution--appeal to supreme court, right of--article 133(1) applies;if a judgment is delivered or a decree or final order is made in a civil proceeding of a high court after the commencement of the constitution, then the provisions of article 133(1) would directly apply. if article 133 does apply to such a case one cannot rely on article 135. article 135 confers on the supreme court all the powers and jurisdiction of the federal court only in matters to which article 133 or 134 does not apply.;the institution of a suit.....1. this is an application for leave to appeal to the supreme court of india against the decree and judgment of this court in a. s. no. 2 of 1947 dated 24-8-1951. the petitioners are defendants 1 to 4 in o. s. no. 47- of 1945 on the file of the court of the subordinate judge of kakinada. the suit was instituted by respondent 8 for partition of certain items of im-moveable property and for delivery of possession to-rum of a fourth share in the first item and a half share in the second and third items. the petitioners supported the plaintiff's claim. petitioner 1 claimed for himself a fourth, share in item 1 and a half share in items 2 and 3, while petitioners 2 to 4 claimed a 12th share in the first item alone. the contesting defendants were defendants 5 to 11. the subordinate judge passed.....
Judgment:
1. This is an application for leave to appeal to the Supreme Court of India against the decree and judgment of this Court in A. S. No. 2 of 1947 dated 24-8-1951. The petitioners are defendants 1 to 4 in O. S. No. 47- of 1945 on the file of the Court of the Subordinate Judge of Kakinada. The suit was instituted by respondent 8 for partition of certain items of im-moveable property and for delivery of possession to-rum of a fourth share in the first item and a half share in the second and third items. The petitioners supported the plaintiff's claim. Petitioner 1 claimed for himself a fourth, share in item 1 and a half share in items 2 and 3, while petitioners 2 to 4 claimed a 12th share in the first item alone. The contesting defendants were defendants 5 to 11. The Subordinate Judge passed a preliminary decree-for partition, but on appeal by defendants 5 to 11 this Court reversed the decision of the Court below and dismissed the suit in toto.

2. When this application originally came on before Satyanarayana Rao and Chandra Keddi JJ. Who had disposed of the appeal it was found that the value of the subject-matter of the suit was over Rs. 10,000 but less than Rs. 20,000. The value of the subject-matter of the proposed appeal was above Rs. 20,000 according to petitioners and below Rs. 20000 according to the respondents, though presumably it was above Rs. 10000. The respondents raised the objection that the petitioners were-not entitled to leave, because the case did not fulfil the pecuniary requirements of Article 133 of the Constitution. The petitioners, on the other hand, contended that by reason of Article 135 of the Constitution they had a right of appeal though the value was below Rs. 20000, because the value was over Rs. 10000 and they would have had a right of appeal under Sections 109 and 110, Civil P. C., as they stood before the Constitution. The learned Judges thought that as the question was of some importance the matter should be considered by a Pull Bench.

3. Before dealing with the contentions on either side it is useful to refer to the statutory provisions governing the rights of appeal against decrees, judgments and final orders of a High Court to a higher Court. Under Clause 39, Letters Patent an appeal lay to the Privy Council from any final judgment, decree or order of the High Court in any matter not being of criminal jurisdiction, provided 'inter alia' that the sum or matter at issue was of the amount or value of not less than Rs. 10000. The corresponding provision is found in Sections 109 and 110, Civil P. C. A new Court was created in India, called the Federal Court, by the Government of India Act, 1935, on which was conferred a limited appellate jurisdiction in respect of judgments, decrees and final orders of a High Court. Under Section 205, sub-e. (1) an appeal lay to the Federal Court from any judgment, decree or other final order of a High Court if the High Court certified that the case involved a substantial question of law as to the interpretation of the Government of India Act. 1935 or any Order in-Council made thereunder. This provision did not in any way affect the appellate jurisdiction of the Privy Council. The appellate jurisdiction of the Federal Court was enlarged by Act 1 of 1948 passed by the Dominion Legislature. This Act, called the Federal Court (Enlargement of Jurisdiction) Act, 1947, came into force on 1-2-1948. From that day an appeal Jay to the Federal Court from any Judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council either with or without special leave if that Act had not been passed. From that day no direct appeal lay to His Majesty in Council either with or without special leave from any such. Judgment, decree, or final order. If an appeal could have been brought to His Majesty in Council without special leave under the provisions of the Civil Procedure Code, .1908, in any case, then an appeal lay to the Federal Court without special leave of the Federal Court. But in other cases an appeal lay with the special leave of the Federal Court, Under Section 6 of the Act it was enacted that the provisions of the Civil Procedure Code, 1908, shall from that day have effect in relation to an appeal from a judgment to which that Act applied as if in the said provisions, for all references to His Majesty in Council there had been substituted references to the Federal Court.

In 1949 the Constituent Assembly passed an Act called the Abolition of Privy Council Jurisdiction Act which came into force on 10-10-1949. The jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any Court or Tribunal (other than the Federal Court) v within the territory of India including appeals and petitions in respect of criminal matters ceased. From that day, on the Federal Court was conferred in addition to the jurisdiction conferred on it by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947 the jurisdiction to entertain, and dispose of appeal and petitions which His Majesty in Council had, toy virtue of His Majesty's prerogative or otherwise immediately before the appointed day. It was provided that for all references to His Majesty in Council there should be substituted references to the Federal Court. The Federal Court ceased to exist on the coming into force of the Constitution, and the Supreme Court came into being. On the same day on which it came ino force, namely, 26-1-1950, the President made an order under Clause (2) of Article 372 of the Constitution called the Adaptation of Laws Order, 1950. Section 3 of this Order runs thus:

"As from the appointed day the existing Central Jaws mentioned in the schedules to this order shall, until repealed or amended by a competent legislature or other competent authority, have effect subject to the adaptations and modifications directed by those schedules or if it is so directed shall stand repealed."

4. In the portion of the schedule relating to the Code of Civil Procedure for Rs. 10000 in Section 110 of the Code, Rs. 20000 was substituted. This was evidently to bring the Code into conformity with Article 133(1) of the Constitution, 'the material part of which runs as follows:

"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 instance and still in dispute on appeal was and is not 'less than twenty thousand rupees or such other sum as may be specified in that behalf by parliament by law."

5. Article 395 of the Constitution repealed the Government of India Act, 1935, together with all enactments amending or supplementing that Act, but the repeal did not include the repeal of the Abolition of Privy Council Jurisdiction Act.

6. The argument of Mr. Bhimasankaran learned counsel for the petitioners, is this: Parties to a suit instituted before the Constitution have a vested right to appeal to the Supreme Court as they had a vested right of appeal to His Majesty in Council when the suit was instituted and for that right must be deemed to have been substituted the right to appeal first to the Federal Court and then to the Supreme Court. It is this right among other rights which is embodied in Article 135 of the Constitution which runs thus:

"Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of Article 133 or Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law."

7. To an application for leave to appeal to the Supreme Court in cases in which the suit was instituted before the coming into force of the Constitution, Article 133 of the Constitution will not apply and such a case would be a matter in respect of which jurisdiction was exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law. "Existing law" would include the Code of Civil Procedure and the Abolition of Privy Council Jurisdiction Act and the Federal Court (Enlargement of Jurisdiction) Act. As, immediately before the commencement of the Constitution, the Federal Court could have entertained an appeal in a case where the amount or value of the subject-matter of the dispute was more than Rs. 10000 and less than Rs. 20000, an appeal would lie to the Supreme court in such a case. In support of his argument learned counsel for the petitioners relied on the well known principle laid down in -- 'Colonial Sugar Refining Co. v. Irving', 1905 A. C. 369 (A), and to the decision of the Full Bench of this Court in -- 'Vasu-deva Samiar', In re, AIR 1929 Mad 381 (B), namely, that when a party institutes a suit he has a right of appeal and further appeals as they existed at the time of the institution and such rights are vested rights which can only be taken away by express enactment or necessary intendment.

8. It must now be taken as well established that the institution of a suit carried with it the implication that all appeals then in force are preserved to the parties thereto till the rest of the career of that suit. But there are exceptions to the application of this rule. One exception is where by competent enactment such right of appeal is expressly or impliedly taken away with retrospective effect. Another exception is that a right of appeal is lost if the Court to which an appeal then lay, that is, at the time of the institution of the suit, is subsequently abolished. Such a position arose in -- 'Canada Cement Co. v. East Montreal Corporation', AIR 1921 P. C. 219 (C). An excellent summary of the effect of this decision is given by Coutts-Trotter C. J. in-- 'AIR 1929 Mad 381 (B)', as follows:

"In that case what was taken away was not the right of appeal but the very Court to which the appeal lay, namely, the superior Court of Montreal sitting in review. By 10 George V, Chap. 79 (Quebec), the right of appeal was transferred from the abolished Court to the Appellate Side of the Court of King's Bench in Quebec, but no provision was made for the transference of appeals which would have lain to the abolished Court to the newly constituted Appellate Court. In these circumstances their Lordships of the Privy council held that an appeal from the Circuit Court to the Court of the King's Bench did not lie."

9. Now, the suit in the present case was instituted in 1945. On that date the final Court of Appeal was the Privy Council. Strictly speaking, if any right was vested in the parties to the suit on the date of its institution, it was a right to finally appeal to the Privy Council. But from 1-2-1948 such a right was expressly abolished. There was no doubt no abolition of a Court as such, but substantially that was the result. Prom that day the Privy Council ceased to be a Court of Appeal from the Indian High Courts. Such right as was vested in the parties to the suit to appeal to the Privy Council, therefore came to an end on that day. Instead the parties may be said to have obtained an alternative right of appeal to the Federal Court. But what must not be overlooked is that this is not because the parties had a vested right, but because the Federal Court (Enlargement of Jurisdiction) Act specially provided for the substitution of the final appellate forum, (vide Section 3 of that Act). Care was taken to save proceedings pending both in the High Courts and in the Privy Council on the date of the coming into force of that Act, as otherwise such proceedings would have lapsed. Under Section 4 of that Act all proceedings and steps taken in, and orders made and certificates granted by a High Court in connection with an appeal to His Majesty in Council shall be deemed to be proceedings and steps taken, orders made and certificates granted in connection with an appeal from that judgment to the Federal Court. Likewise, under Section 5 every application to His Majesty in Council for special leave stood transferred to the Federal Court to be disposed of by that Court as if it had been an application duly made to that Court. Similar provisions are to be found in the Abolition of Privy Council Jurisdiction Act, 1949 (Sections 6, 7 and 8). But for such provisions even pending proceedings before the Privy Council or In the High Courts in respect of appeals to Privy Council would have terminated. It follows, therefore, that the utmost that can be said in favour of the petitioners is that immediately before the coming into force of the Constitution the existing law conferred a right on the parties in this case to appeal to the Federal Court. When this Court was abolished by the coming into force of the Constitution the question is, were any rights substituted for the rights which existed at the time? Article 374(2) specially provides for all suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of the Constitution. These shall stand removed to the Supreme Court and the Supreme Court shall have jurisdiction to hear and determine the same. But we find no provision made as regards proceedings by way of' appeal or otherwise not pending in the Federal Court at the commencement of the Constitution which might have been taken in the Federal Court or in the High Court in respect of an appeal to the Federal Court. There is no indication as to what is to happen to such proceedings which had not commenced by the date of the Constitution.

10. Mr. Bhimasankaran contended that Article 135 was intended to apply to such cases. A case in which an appeal would have been competent to the Federal Court under Section 110, Civil P. C., as it then stood, namely, where the value of the subject matter in dispute was more than Rs. 10000, even though less than Rs. 20,000 would, be a matter to which the provisions of Article 133 would not apply, but a matter in relation to which jurisdiction and power were exercisable by the Federal Court immediately before the commencement of the Constitution. The expression "any matter to which the provisions of Article 133 or Article 134 do not apply" should be construed widely so as to include a ease which did not fulfil the requirements, pecuniary or otherwise, of Article 133(1).

11. Learned counsel for the petitioner relied upon several decisions of this Court as well as other High Courts. In -- 'Ramaswami v. Ramanathan', (D), a Division Bench consisting of

Subba Rao and Panchapakesa Ayyar JJ. held that an appeal lies against the Judgment and decree of the High court delivered prior to the commencement of the Constitution if an appeal lay to the Federal Court when such judgment was delivered. They observed:

" 'Matter' in Article 135 is a word of wide connotation. I may include subject matter not dealt with by Articles 133 and 134 but governed by specific Acts in regard to which appeals lay to the Federal Court immediately before the commencement of the Constitution. But there is no reason to exclude from its operation subject-matter below the pecuniary limits prescribed under Article 133 of the Constitution if the jurisdiction and powers in relation to that matter were exercis-able by the Federal Court immediately before the commencement of the Constitution. It would certainly be a subject matter in regard to which the provisions of Article 133 or Article 134 do not apply."

It was urged before them that the Federal Court could not have exercised jurisdiction till this Court gave leave and that as no leave had been obtained before the commencement of the Constitution the jurisdiction and powers of the Federal Court were not exercisable in regard to the matter. But on a perusal of the relevant provisions the learned Judges held that the jurisdiction of the Federal Court did not depend upon the certificate but on a compliance of the conditions laid down in the relevant sections. This decision was followed by another Division Bench to which I was a party -- 'Palani Gounder v. Rama Goundan', C. M. P. No. 3990 of 1949 (E). After referring to the decision in -- ' (D)', we said:

"It may 'be that there is an arguable case for a contrary view, but we propose to follow the decision of the Division Bench as this point is bound to be decided sooner or later by the Supreme Court itself."

12. The decision in -- 'Venkatoswami v. Menik-yam',

(F) does not carry us further, in -- 'Saraswathi v. Rajagopar, (G), the point was not specially argued as the

question referred to the Full Bench was whether one single appeal was maintainable to the Supreme Court when there were two appeals to this Court arising out of the same suit. In the course of my judgment I said, referring to the two earlier decisions

"as the appeals in this Court were disposed of and the application for leave to appeal was filed before the coming into force of the Constitution, the provisions of Sections 109 and 110, Civil P. C. as they stood on the date of the application, would apply to the case: vide -- ' (D) & -- 'C. M. P. No. 3990 Of 1949

(E)'."

The Full Bench certainly did not consider the question.

13. I shall now refer to the decision of other High Courts on which Mr. Bhimasankaram placed reliance. One important difference between the cases in which these decisions were given and the case before us is that in all those cases the judgments of the respective High Courts were delivered before the Constitution, came into force and the applications for leave also appear to hare been filed before that date, whereas in the present case both the judgment of this Court and the application for leave are after the Constitution. In -- 'Nandlal v. Hiralalsao', AIR. 1950 Nag 222 (H), the valuation was over Rs. 10000 but less than Rs. 20000. But the learned Judges held that a certificate should issue permitting an appeal to the Supreme Court. The reasoning of the learned Judges was that the application for leave pending on the date the Constitution was brought into force, that a vested right existed in the applicants to file an appeal as of right before the Federal Court and that right could only be taken away by express provision of law or by necessary intendment, that Article 133 is not retrospective and therefore must be taken not to apply to the case and the jurisdiction must be held to be preserved by virtue of Article 135. The only authority cited in the judgment is -- '(1905) A. C. 369 (A)'. It is not clear whether the learned Judges based their decision on the fact that the application for leave was pending on the date the Constitution came into force. If that is a material fact, then it is absent in the- present case.

14. In -- 'Netlal v. Ucheshwar', AIR 1951 Pat 612 (I), the case did not satisfy the requirement as to valuation under Article 133(1), though it fulfilled the requirements under Section 110, Civil P. C., as it stood before the Adaptation of Laws Order. The learned Chief Justice and Chatterji J. held that Article 133 did not' apply, but under Article 135 an appeal could be filed to the Supreme Court. The learned Judges - appear to have attached importance to the fact that the decree sought to be appealed from was passed and the application for leave to appeal was filed before the Constitution. The learned Judges based their decision on Article 135 of the Constitution because Article 133 would not apply where the right to appeal acquired before the Constitution came into force. The learned Judges 'inter alia' observed:

"As soon as the judgment was pronounced and the decree made, the petitioner as an aggrieved party, had a right to prefer a direct appeal to His Majesty in Council under the provisions of Sections 109 and 110, Civil P. C............... Under this Act (The Federal Court Enlargement of Jurisdiction Act) ..... appeals in all civil cases from which a direct appeal could have been carried to His Majesty in Council either with or without special leave could lie to the Federal Court under the provisions of the Civil Procedure Code, 1908. The present application was filed for leave to appeal to the Federal Court. Now under the Constitution jurisdiction and powers exercisable by the Federal Court immediately before the commencement of the Constitution have vested in the Supreme Court under Article 435 and it is by virtue of this Article that the jurisdiction in respect of the present case now vests in the Supreme Court."

15. The learned Judges relied upon an earlier unreported judgment of their Court. In that case Reuben J. adopted a similar reasoning. He said:

"The decree which, is sought to be appealed against was passed before the commencement of the Constitution of India and Jurisdiction to entertain an appeal against it was exercisable by the Federal Court immediately before the commencement of the Constitution. By Article 135 the jurisdiction has been transferred to the Supreme Court."

16. Ray C. J. and Narasimham J. of the Orissa High Court held in -- 'Kamal Nayan v. Bira Naik',. (J), that where an

application for leave to appeal had been filed long before the Constitution came into force and the decree involved a claim with respect to property of the value Of Rs. 10000 or upwards, Article 135 applied and certificate for leave to appeal to the Supreme Court should be granted. The learned Judges appear to have based their decision on the doctrine of vested rights, and they refer to the decision of the Special Bench of the Calcutta High. Court in -- 'Sadar Alt v. Dalimuddin', AIR 1928 Cal 640 (K), which is exactly similar to the Full Bench decision of our Court in -- 'AIR 1929 Mad. 331 (E). The following passage in their judgment makes it clear that they approached the question from- this angle:

"On very high authorities it has been held that the right to appeal is a vested right which vests. in the litigant at the time the suit is instituted. By subsequent alteration of the law, cither relating to the form or to the other limitations to the right of appeal, it cannot be taken away unless the law purporting to take it away is, either expressly, or by necessary intendment, given a retrospective operation. We have no doubt that Article 133 has no retrospective operation."

17. The latest of the decisions in which there-is a discussion both of principles & case law is-that of the Bombay High Court in -- 'Daji Saheb v. Shankarrao', . (L). There too the decree of the High Court had been passed before the Constitution came into force. It appears that an application for leave to appeal to the Federal Court was made before that date, but after the Constitution came into force another application was made for leave to appeal to the' Supreme Court. The finding was that the value of the subject matter was between Rs. 11000 and Rs. 13000 on both the material dates. It was held that the applicant was entitled to leave. The learned Chief Justice who delivered the judgment of the Bench starts with a reference to the doctrine of vested right of appeal. When the suit was filed it was not disputed, the petitioner had a right to appeal either to the Privy Council or to' the Federal Court. I am unable to exactly follow how at any particular time, say for instance when the suit was filed, there could be a right of appeal either to the Privy Council or to the Federal Court. The learned Chief Justice then had to deal with the contention on behalf of the respondent that the principle of right of appeal being a vested right, could not apply when a new Court is created by the Constitution and a right of appeal is for the first time granted to that Court and as both the Privy Council and the Federal Court had been abolished there is no surviving-right and a litigant was not entitled to say that because he had a right to appeal to a Court which no longer existed he therefore had also a right to appeal to a new Court which has been set up with a definite jurisdiction. The learned Chief Justice thought at first blush that this was a. very attractive argument. But he finally rejected it on the ground that in many respects it was clear that the Supreme Court was intended to take the place of the Privy Council and the Federal Court. After referring to the Adaptation of Laws Order, 1950 and to the provisions of Section 27 of that Order which provided that nothing in the Order shall affect the right already acquired under any existing law, the learned Chief Justice observed as follows;

"Now, the right that the petitioner had acquired under Section 110 was to appeal to the Privy Council if the amount or value of the subject matter in dispute was Rs. 10000 or more, and that right which was a vested right was expressly not taken away by the provisions of Section 27 Of the Order. Therefore, although after the constitution came into force, the jurisdiction of the Supreme Court in Civil matters is restricted and the power of the High Court to give a certificate under Section HO has also been modified, these provisions cannot affect the right which a litigant had already acquired prior to the coming into force of the Constitution and which right has seen expressly saved."

He edded that although the Supreme Court under Article 133 could not exercise jurisdiction in respect of that matter, in so far as the Federal Court could have exercised the jurisdiction by reason of Article 135 it has been given the same jurisdiction as the Federal Court. In the concluding portion of his judgment the learned Chief Justice made certain observations which are much wider than was necessary for the" purposes of the case, namely,

".... .in all matters where there was a right of appeal under Section 110, Civil P. C., that right continues in respect of .all suits filed prior to the coming into force of the Constitution."

18. In all these decisions it was apparently assumed that the expression "any matter to which the provisions of Article 133 or Article 134 do not apply" would comprise a case which did not fulfil the requirements of Article 133 because the valuation was less than Rs. 20000 and not in the limited sense of proceedings which were not in the nature of a judgment, decree or final order hi a civil proceeding of a High Court. We shall assume for the present that this wide construction is permissible. But the important question which then arises is, can it be said that a judgment delivered or a decree passed by a High Court after the coming into force of the Constitution is not governed by Article 133(1)? In my opinion, if a judgment is delivered or. a decree or final order is made in a civil proceeding of a High Court after the commencement of the Constitution then the provisions of Article 133(1) would directly apply, what evidently Mr. Bhimashankaram wants us to do, though he did not say so in so many terms, is to read the words "any Judgment, decree or final order" as meaning "any judgment, decree or final order in a suit or other proceeding instituted after the coming into force of the Constitution"--a construction which will practically render Article 133(1) a dead letter for many years to come. I see no justification to read into the article the qualification suggested by his argument.

19. Moreover I think it is a wrong construction .of that expression to say that Article 133 does not I apply to a case when what is meant is that the case does not fulfil the requirements of the Article. Whether a particular article or provision of law applies to case is one thing; it is suite another thing applying that Article to determine if a party is entitled or not entitled to the relief he claims. To give an instance, if a suit is for breach of a contract not registered, the article of the Limitation Act applicable to it would be Article 115. But the question whether applying that Article, the particular claim in the suit is or is not barred is quite another matter. Any number of such instances can be given. It appears clear to me that Article 133 would certainly apply to any Judgment, decree or final order in a civil proceeding of a High Court in the territory of India delivered or passed after the commencement of the Constitution. The decree now ought to be appealed is one such. It therefore cannot be held that this is a matter to which the provisions of Article 133 do not apply and therefore Article 135 will apply. Indeed, Mr. Bhimashankaram rightly conceded that if it be held by us that Article 133 will apply to the case,, then he cannot rely on Article 135. There would be I no question of the application of the rule which enunciates a presumption against retrospective operation because the Article (Art. 133) is notj sought to be applied to a judgment, decree or order before the date on which Article 133 came into force. In none of the cases decided by the other Courts to which reference was made earlier was there necessity to deal with the case of a decree passed after the Constitution.

20. There are undoubtedly observations in the decision of the Bombay High Court which appear to support the contention based on vested rights accruing on the institution of a suit. With great respect to the learned Judges I must say that the proper approach in this case is not from that aspect. In the present case, if the material date is taken to be the date of the institution of the suit, then the vested right which accrued to the petitioner must be a right to finally appeal to the Privy Council. Now that right cannot possibly be exercised. The Privy Council as an appellate forum has ceased to exist. Therefore, in strictness, the vested right cannot be enforced as such. No doubt a new Court has been substituted for the Privy Council. But then, the party's right should be founded on the provisions relating to the jurisdiction and powers of the new Court and not on an extension of the vested right already existing. If, say, a new Court was established but no provision was made for filing appeals to the new Court, in cases where appeals could have been filed to the Court which ceased to exist, then obviously there would be no right of appeal to the new Court in spite of the doctrine of vested rights. This is the principle laid down in -- 'AIR 1921 P. C. 219 (B). There is no provision so far as I am aware which confers in all matters in which an appeal could have been preferred to the Federal Court before the Constitution a right to appeal to the Supreme Court. I do not read Article 135 as such a provision. Article 135 confers on the Supreme Court all the powers and jurisdiction of the Federal Court only in matters to which Article 133 or Article 134 does not apply,

21. There is another aspect of the question to which I shall briefly refer. It was held in --'Lachmeswar v. Keshwarlal', AIR 1941 F. C. 5 (M), that unless an appeal to the Federal Court had been admitted the proceedings must be deemed to be pending before the High Court in respect of which the Federal Court could not exercise jurisdiction. If that be so, how can it be said that a case in which the decree was passed after the commencement of the Constitution is a matter in relation to which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution? In my opinion it is at least necessary that the judgment should have been delivered or the decree or final order passed before the Constitution to say that the Federal Court had any exercisable jurisdiction and powers in relation to a case. Whether it is also necessary that an application for leave should have been filed or granted before that date,| it is unnecessary to discuss now, as in the present case neither event has happened before the Constitution.

22. Mr. Somasundaram for the respondents contended that one cannot speak of the vested right of appeal being taken away if all that Had happened is a change in the conditions and requirements to be fulfilled before the right of appeal can be enforced. The argument is no doubt attractive, but I am afraid it is not open after the ruling of the Full Bench in -- 'AIR 1929 Mad 381 (B)', for there too it could have been argued on the same analogy that the right of filing an appeal under Clause 15, Letters Patent was not taken away but only a condition imposed, namely, that leave should be obtained.

23. My conclusion is that Article 133(1) of the Constitution applied to this case and therefore the requirements as to valuation must be determined by the provisions of Clause (a), viz., 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.

24. With this expression of opinion the petition will go before the learned Judges who referred the matter to the Full Bench.


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