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Mt. Murtu and ors. Vs. Paras Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 5 of 1951
Judge
Reported inAIR1952HP14
ActsConstitution of India - Article 133 and 133(1); ;Himachal Pradesh State Courts Act, 1943 - Section 34; ;Code of Civil Procedure (CPC) , 1908 - Section 109; ;Himachal Pradesh (Courts) Order, 1948
AppellantMt. Murtu and ors.
RespondentParas Ram and ors.
Appellant Advocate Daulat Ram, Adv.
Respondent Advocate Thakur Das, Adv.
DispositionApplication allowed
Cases ReferredBanarsi Parshad v. Kashi Krishna
Excerpt:
- .....or by some other provisions.3. before deciding the above point it is necessary to state that the present suit was instituted on 28-5-1948 and decreed by the trial court on 31-7-1950. the first appeal before the district judge was allowed on 28-12-1950, and the district judge's decision was set aside by this court, as already stated, on 17-5-1951. the present petition was filed on 3-7-1951. the constitution of india came into force on january 26, 1950, long after the institution of the suit. now, the locus classicus on the subject is the pronouncement of their lordships of the privy council in 'colonial sugar refining co. ltd. v. irving', (1905) ac 3g9, and on an interpretation of the principle there enunciated and reaffirmed by their lordships in the 'delhi cloth and general mills co......
Judgment:

Chowdhry, J.C.

1. This is a defendants' application for leave to appeal to the Supreme Court against the judgment of this Court dated May 17, 1951, in second appeal No. 8 of 1951, Paras Ram v. Mst. Murtu and others, whereby the appellate judgment and decree of the District Judge of Mahasu were set aside and those of the trial Court decreeing the suit of the plaintiff-respondent restored.

2. The value of the land in suit is admittedly Rs. 10,000/-. It was therefore objected by the learned counsel for the plaintiff-respondent that in view of the provisions of Article 133 of the Constitution of India, which has raised the value of the subject-matter of the dispute from Rs. 10,000/- to Rs. 20,000/-, the petitioners are not entitled to the certificate prayed for. It may be stated here in passing that the judgment of this Court having reversed the decision of the lower appellate Court, the petitioners would be entitled to the certificate as a matter of course without the proposed appeal involving any substantial question of law if the case fulfils the relevant requirement as regards the amount or value of the subject-matter of the dispute. The question however, is whether for the fulfilment of the said requirement as regards the amount or value of the subject-matter of the dispute the present petition is to be governed by the provisions of Article 133 of the Constitution of India or by some other provisions.

3. Before deciding the above point it is necessary to state that the present suit was instituted on 28-5-1948 and decreed by the trial Court on 31-7-1950. The first appeal before the District Judge was allowed on 28-12-1950, and the District Judge's decision was set aside by this Court, as already stated, on 17-5-1951. The present petition was filed on 3-7-1951. The Constitution of India came into force on January 26, 1950, long after the institution of the suit. Now, the locus classicus on the subject is the pronouncement of their Lordships of the Privy Council in 'Colonial Sugar Refining Co. Ltd. v. Irving', (1905) AC 3G9, and on an interpretation of the principle there enunciated and reaffirmed by their Lordships in the 'Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi', AIR (14) 1927 PC 242, it has been held in Full Bench decisions of at least three High Courts, i.e. in 'Sadar Ali v. Doliluddin', AIR (15) 1928 Cal 640; 'Ram Singha v. Shankar Dayal', AIR (15) .1928 All 437 and 'Gopal Marwari v. Emperor', AIR (30) 1943 Pat 245, that the right of appeal is a substantive right and not a mere matter of procedure, that it is governed by the law prevailing at the date of the institution of the suit, and that that right could not be taken away by any subsequent enactment unless the subsequent enactment purports expressly or by necessary implication to be retrospective. This principle has been applied in a number of recent decisions with respect to Article 133 itself, where it has been held that the Article has no retrospective effect. See 'Nandlal v. Hiralalsao', AIR (37) 1950 Nag 222 and 'Kamal Nayan v. Bira Naik', AIR (38) 1951 Orissa 141. In fact, the language of Article 133 is quite plain, and there is nothing in it which might lead to the conclusion that it was meant to have a retrospective effect. I therefore hold that the right of appeal to the Supreme Court in the present case will be governed by the law prevailing at the time of the institution of the present suit, and not by Article 133 of the Constitution of India. The relevant law in force on 28-5-1948, when the present suit was filed, was not that contained in the Civil P. C., for the Code was applied to Himachal Pradesh on 25-12-1948 under the Himachal Pradesh (Application of. Laws) Order, 1948. Section 5 of the Himachal Pradesh (Administration) Order 1948, which came into force on 15-4-1948, provided that all laws in force in Himachal Pradesh or any part thereof immediately before the commencement of the Order shall continue in force until repealed or amended by a competent legislature or authority. So far as the law relevant to the matter under consideration is concerned, it was contained in the State Courts Act, 1943, and this Act had not been repealed or amended by the time that the present suit was instituted. Section 34 of this Act was to the following effect :

'An appeal shall, lie to the Judicial Committee,

(a) from any decree or final order passed by the Chief Judicial Officer in the exercise of his original civil jurisdiction or

(b) from any decree or order when the case is certified by the Chief Judicial Officer to be fit one for appeal to the Judicial Committee, or

(c) from any decree or final order passed on appeal by the Chief Judicial Officer in cases relating to land the value of the subject-matter of which is Rs. 1,000/- or upwards and in other cases Rs. 2,000/- or upwards.'

It is clear therefore that under the law prevailing at the date of the institution of the present suit the petitioners would be entitled as a matter of course to appeal to the Supreme Court if the decree or final order were passed by this Court in a case relating to land (and the present case is one relating to land) and the value, of the subject-matter be Rs. 1,000/- or upwards. The value of the property in suit in the present case, as adverted to above, is Rs. 10,000/-. The leave prayed for by the petitioners must therefore be granted.

4. The present petition should also be granted on the ground that this is a fit ease for appeal to the Supreme Court. This is a ground which is common to all the relevant provisions of the law, whether it be Section 34 of the States Courts Act, 1943, Section 109 (c), Civil P. C. or Article 133 (1) (c) of the Constitution of India. The main point raised on behalf of the present petitioners in the second appeal before me was that the provisions of the Himachal Pradesh (Courts), Order, 1948, were not applicable, and that under the Civil' P. C. neither a second appeal nor a revision was competent. This contention was however repelled, and it was held that the case was governed by the Himachal Pradesh (Courts) Order, and that under the provisions of that Order the second appeal was maintainable. This is a question of public importance affecting the litigants of this State of Himachal Pradesh. That being so, this is one of those special cases referred to in 'Banarsi Parshad v. Kashi Krishna', 28 Ind App 11 at p. 13, which should be certified as fit for appeal to the Supreme Court.

5. The application is allowed with costs,which I fix at Rs. 30/- (Rupees thirty). Leta certificate as prayed for be granted to thepetitioners.


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