Indian Kanoon - Search engine for Indian Law

It is clear from the above passage that the reason why the appeal was held to be incompetent was not that the court to which an appeal lay at the date of the institution of the suit had been abolished and, therefore, the right of appeal ceased to exist nor that that court was abolished and a new court was set up in its place and nothing was mentioned about the vested right of appeal but that the new court which took the place of the court to which the appeal originally lay was given jurisdiction in all cases " unless otherwise provided by this Act " and that that very Act having declared the whole of the sections of the Code in which the provisions relating to the Circuit Court and rights of appeal found place to be replaced by other provisions and those other provisions having completely dropped out the provisions relating to the appeal from the Circuit Court, it was held that the statute "had otherwise provided In other words his case illustrates that the matter really came within the first exception, namely that the vested right of appeal had been taken away expressly or by necessary intendment rather than within the second exception where the court to which the appeal lay had been abolished simpliciter. This case, therefore, can give no support to the conclusion of the Full Bench. Apart from what, with respect, appears to us to be an erroneous reading of that Canadian case, the judgment of this Madras Full Bench seems to have been founded on the idea that the Constitution simply brought about an abolition of the Federal Court simpliciter and consequently the old vested right of appeal thereto ceased to exist and that as no new right of appeal was given to the new court, i.e., the Supreme Court, no appeal lay to it. If this reasoning of the Madras High Court were correct then with respect to the case of Colonial Sugar Refining Co. Ltd. v. Irving (supra), it could be said, adapting the language used in the Madras Full Bench case and quoted above, that if any right was vested in the parties to the suit on the day of its institution in the court of first instance it was a right of final appeal only to the Privy Council, that though strictly speaking there was no abolition of the Privy Council as such, yet substantially that was the result, for the Privy Council ceased to be a court of appeal from the Queensland Supreme Court and, therefore, such right as was vested in the parties to the suit to appeal to the Privy Council came to an end when the amendment came into force and that instead of that vested right the parties had obtained the alternative right of appeal to the High Court of Australia and, therefore, no appeal lay to the Privy Council. If the reasoning of the Madras High Court were correct then the Privy Council case of Colonial Sugar Refining Co. Ltd. v. Irving (supra) must be held to have been wrongly decided. But such an argument has not been advanced and, we apprehend, cannot for a moment be countenanced. In that case the Privy Council enunciated a principle which, according to them, was well established by a series of decisions going back to the time of Lord Coke and that principle has been adopted by Full Benches of almost all the High Courts of India and has never been dissented from or doubted. It is now too late in the day to go back upon a principle on the strength of which appeals have been filed and allowed and rights of parties have been adjudicated upon and titles to properties have been declared for over 50 years. If, therefore, we are to accept the correctness of the principle laid down by the Privy Council, as we think we must, then the only question that remains and calls for a decision is whether the Constitution has expressly or by necessary intendment. taken away the right of appeal which vested in the parties at the date of the commencement of the proceedings in the court of first instance. It is said that Art. 133 of the Constitution has taken away that right. This contention appears to be untenable and open to serious objections. There is nothing in Art. 133 which in terms expressly take,% away the vested right of appeal from any judgment, decree or final order of a High Court passed in a civil proceeding arising out of a suit or proceeding instituted before the commencement of the Constitution. Does the article, then, disclose any necessary intendment to that effect? It is said that that article gives a right of appeal from any judgment, decree or final order of a High Court passed after the date of the Constitution, provided it satisfies the conditions therein mentioned and this provision impliedly negatives the right of appeal from judgments passed after the Constitution if the conditions are not satisfied, no matter when the proceedings had been instituted in the court of first instance. Article 133 only speaks of any judgment, decree or final order of a high Court. It does not say judgment, decree or final order passed after the Constitution. Therefore, when an application for leave to appeal from a judgment, decree or final order of a High Court is made after the Constitution then, at the date of the application, surely the judgment, decree or final order passed before the Constitution can also , be described literally and correctly as a judgment, decree or final order of a High Court. But it is said at once that the Constitution is prospective and, therefore, the judgment, decree or final order contemplated therein can only be a judgment, decree or final order passed after the Constitution. But if by reason of the theory that the Constitution is prospective we are to read the words "passed after the Commencement of the Constitution" after. the words " judgment, decree or final order ", can there be any cogent reason why we may not also read the words "

We now pass on to consider another construction of Art. 133 which appears to us to be quite cogent. We have seen that ss. 109 and 110 of the Code of Civil Procedure were adapted by the President's Order and the valuation had been raised from Rs. 10,000 to Rs. 20,000 in order to bring it into conformity with Art. 133. Clause 20 of that Adaptation Order itself provided that such adaptation would not affect. the vested rights. Therefore those litigants who had a vested right of appeal from judgments, decrees or final orders of a High Court in a civil proceeding arising. out of a suit or proceeding instituted prior to the Constitution and which involved a right or property valued at over Rs. 10,000 but below Rs. 20,000 are still to be governed by the old ss. 109 and 110. This means that the words " judgment, decree or final order" occurring in ss. 109 and 110 of the Code as adapted must be read as a judgment, decree or final order made after the date of the adaptation other than those in respect of which a vested right of appeal existed before the adaptation and which were preserved by cl. 20. If ss. 109 and 110 must be read in this way why should not Art. 133 be read as covering all judgments, decrees or final orders of a High Court passed after the commencement of the Constitution other than those in respect of which a vested right of appeal existed from before the Constitution? It is said that there is no saving provision to Art. 133 like cl. 20 of the Adaptation Order and, therefore, Art. 133 cannot be read in a restricted way. This argument is unsound and here the observations of Rankin C.J. in the Special Bench case of Calcutta referred to above become apposite, namely, that the provision which takes away jurisdiction is itself subject to the implied saving of the litigant's right. Clause 20 'will be meaningless if Art. 133 is also not read in a restricted sense. This restricted% construction of Art. 133 will not be open to the objection that it deprives the aggrieved litigant who had filed his suit or proceeding in a princely State before the Constitution but against whom an adverse judgment, decree or final order has been made by the High Court of the corresponding Part.B State for the Privy Council to which that litigant had the right to go had been abolished. Such a litigant had no vested right and therefore he can come under Art. 133 if the conditions thereof are satisfied.

As against this construction it is said that it will not help a litigant who had filed his suit before the Constitution but against whom an adverse order is made after the Constitution, for having on this construction a vested right of appeal he will be outside the purview of Art. 133 and he can only exercise his vested right if he can come within Art. 135. It is said that in order to come within Art. 135 the judgment, decree or final order must be passed before the commencement of the Constitution when the Federal Court was in existence, for on the coming into force of the Constitution the Federal Court ceased to exist and the Federal Court could not possibly exercise any jurisdiction immediately before the commencement of the Constitution with respect to a judgment, decree or' final order which had been passed after the date of the Constitution when the Federal Court ceased to exist. This is to give Art. 135 a very narrow and limited construction which was deprecated by this Court in Daji Saheb Mane v. Shankarrao Mane (supra). Further this construction overlooks the fact that Art. 135 confers on this Court the same jurisdiction and power with respect to any matter to which the provisions of Art. 133 or Art. 134 do not apply, if the jurisdiction and power in relation to that matter were exercisable by the Federal Court immediately before the Constitution under any existing law. If we accept the position that at the date of the institution of the civil proceeding a right vested in the litigant to appeal to the Federal Court. then it becomes difficult to hold that such vested right did not constitute a " matter " in relation to which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution. - The word " matter " is certainly a word of wide import and by interpreting it in a liberal way the vested rights of appeal may well be brought within the purview of Art. 135. If we say that the Federal Court could not exercise jurisdiction or power unless a judgment, decree or final order was actually passed before it ceased to exist then it will also have to be said that the Federal Court could not exercise jurisdiction or power in relation to a judgment, decree or final order passed before the Federal Court ceased to exist, but with respect to which no leave to appeal bad been obtained either from the High Court or from the Federal Court, for without such leave no jurisdiction or power was exercisable by the Federal Court in respect of those judgments, decrees or final orders. This Court has already held that the word " exercisable " should not be used in that limited and restricted sense. In our opinion jurisdiction and powers in relation to a judgment, decree or final order to be passed by the High Court after the Constitution but with respect to which a right of appeal had vested in the parties before the commencement of the Constitution must be 'held to have been " exercisable " by the Federal Court immediately before the commencement of the Constitution. Such jurisdiction and powers were "exercisable " in the sense that they could be exercised as soon as a judgment, decree or final order was passed provided that with respect to it a litigant had already acquired a vested right of appeal. There is no reason why the operation of Art. 135 should be limited to cases where the right of appeal was not a mere potentiality but had actually arisen in a concrete form immediately before the commencement of the Constitution as was suggested by Chakravartti C. J. in Prabirendra Mohan v. Berhampore Bank Ltd. (supra).

the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled, this appeal is clearly competent."

What was claimed by the respondent was the attribute of finality attaching to the judgment, decree or final order of the Jaipur High Court. The argument was that the Jaipur High Court having given its judgment in 1949 that judgment became final and the respondent has a vested right to that final order, and that right had not been taken away by the Constitution either expressly or by necessary intendment. What this Court said was that the review application having been made the appeal became pending and at large, for the judgment was under consideration and, therefore, no finality had attached to it before- the Constitution came into force. The judgment on review was passed by the Rajasthan High Court in April, 1950, that is, after the Constitution by a High Court of a Part B State constituted under the Constitution and the respondent had no vested right of finality in relation to any judgment of the Rajasthan High Court,. The appellant's vested right of appeal to the Privy Council of that State came to an end as that authority was abolished and at the date of the suit he had no right of further appeal from the judgment of the Jaipur High Court to the Federal Court or to this Court. That being the position it *as a judgment with respect to which nobody had any vested right of appeal and, therefore, an appeal lay to this Court under Art. 133 as construed above. lt did not matter in that case whether the appeal was maintainable under Art. 133 or Art. 135 and the question that we are considering in the present appeal does not appear to have been urged by learned counsel or discussed by the court in that case and the cryptic observation quoted above cannot be taken as a considered and final expression of opinion that whenever a judgment, decree or final order is passed after the date of the Constitution it must come within Art. 133 no matter whether the proceedings were instituted before or after that date, For reasons stated above we think that the suit, out of which this application arises, having been instituted before the date of the Constitution the parties thereto had, from the date of the institution of the suit, a vested right of appeal upon terms and conditions then in force and the judgment sought to be appealed from being a judgment of reversal and the value of the subject matter being above Rs. 10,000 the applicant had a vested right of appeal to the Federal Court under the provisions of the old Civil Procedure, Code read with the Government of India Act, 1935, and the Federal Court (Enlargement of Jurisdiction) Act, 1947. Such a vested right of appeal was a matter which did not fall within Art. 133 and jurisdiction and powers with respect to such right of appeal was exercisable by the Federal Court immediately before the commencement of the Constitution and consequently the applicant had a right of appeal under Art. 135 and the High Court was in error in refusing leave to appeal to the petitioner. As in our opinion the petitioner was entitled under Art. 135 to come up on appeal to this Court as of right and such right has been wrongly denied to him we are prepared, in the circumstances of this case, to grant him special leave to appeal to this Court under Art. 136 of the Constitution. The petitioner will have the costs of this application from the respondents Nos. I and 2.