Garikapatti Veeraya Vs. N. Subbiah Choudhury [1957] INSC 8 (1 February 1957)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.
DAS, S.K.
CITATION: 1957 AIR 540 1957 SCR 488
ACT:
Supreme Court, Appellate Jurisdiction of-Decree in suit instituted prior to the Constitution reversed in appeal by High Court after the Constitution-Value of subject-matter short of twenty-thousand Appeal, if lies-Vested right of appeal-Constitution of India, Arts.133, 135.
HEADNOTE:
This application for special leave to appeal arose out of a suit instituted on April 22, 1949, and valued at Rs. 11,400.
The Trial Court dismissed the suit and the High Court in appeal reversed that decision on February 10, 1955.
Application for leave to appeal to the Supreme Court was refused by the High Court on the ground that the value did not come upto Rs. 20,000. It was contended on behalf of the applicant that he had a vested right of appeal to the Federal Court under the law as it then stood and that Court having been substituted by the Supreme Court, he was as of right entitled to appeal to that Court under Art. I35 Of the Constitution.
Held, (per Das C.J., Bhagwati, B. P. Sinha and S. K. Das jj., Venkatarama Ayyar J. dissenting) that the contention of the applicant was well-founded, that he had a vested right of appeal to the Federal Court on and from the date of the suit and the application for special leave should be allowed.
The vested right of appeal was a substantive right and, although it could be exercised only in case of an adverse decision, it was governed by the law prevailing at the time of commencement of the suit and comprised all successive rights of appeal from court to court, which really constituted one proceeding. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment.
Colonial Sugar Refining Company Ltd. V. Irving, (1905) A.C. 369, followed.
Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 5I2 and In re Vasudeva Samiiar, (1928) I.L.R. 52 Mad. 361, relied on.
Case-law reviewed.
Article 133 Of the Constitution had no application to such cases. It was not intended to have retrospective operation so as to take away this vested right nor did it do so either in express terms or by necessary intendment. Correctly construed it should be read as restricted to only those judgments, decrees and final orders of a High Court in respect of which there was no such 489 vested right of appeal, as otherwise cl. 2o of the Adaptation of Laws Order, 1950, which saves such a right, would become nugatory. A litigant in a Princely State who could have no vested right of appeal to the Federal Court must, however, come under Art. 133.
Janardan Reddy v. The State, (1950) S.C.R. 940, Keshavan Madhava Menon v. The State of Bombay, (1951) S.C.R. 228 and Dajisahib Mane v. Shankar Rao Vithal Rao, (1955) 2 S.C.R.
872, referred to.
This vested right of appeal acquired under the old law was a matter contemplated by Art. I35 Of the Constitution in relation to which the jurisdiction and powers of the Federal Court were exercisable at the commencement of the Constitution and as such it was within the purview of the appellate jurisdiction of the Supreme Court, and the appeal was entertainable by it. Article I35 could not be limited to such cases only where the right of appeal had actually arisen in a concrete form, and was no mere potentiality, immediately before the Constitution.
Ramaswami Chettiar v. The Official Receiver, A.I.R. 1951 Mad. 1051. Veeranna v. China Venkanna, I.L.R. 1953 Mad. 1079, Probirendra Mohan v. Berhampore Bank Ltd. A.I.R. 1954 Cal. 289, Ram Sahai v. Ram Sewak, A.I.R. 1956 All. 321, Tajammul Hussain v. Mst. Qaisar Jagan Begam, A.I.R. 1956 All. 638 and The Indian Trade and General Insurance Co. Ltd.
v. Raj Mal Pahar Chand, A.I.R. 1956 Punj. 228, overruled.
Canada Cement Co. Ltd. v. East Montreal (Town of), (1922) I A.C. 249 and Nathoo Lal v. Durga Prasad, (1955) I S.C.R. 51, distinguished.
Per Venkatarama Ayyar 1. A right of appeal was undoubtedly a substantive right but it did not therefore, follow that it vested in the parties to a suit on and from the date of its commencement and the decision in Colonial Sugar Refining Company Ltd. v. Irving on which such a theory was sought to be founded was neither supportable in principle nor warranted by the authorities it relied on.
Right to appeal to a superior court could arise only on the passing of an adverse decision and the rights of successive appeals provided by the law did not constitute either a single proceeding or a single right as will be apparent from the relevant provisions of the Code of Civil Procedure .
Colonial Sugar Refining Company Ltd. v. Irving, (1905) A.C. 369, not followed.
Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 5I2 and In re Vasudeva Samiar, (1928) I.L.R. 52 Mad. 361, dissented from.
Case-law discussed.
Assuming that the petitioner had such a vested right of appeal to the Federal Court before the commencement of, the 490 Constitution, that right must be held to have ceased with the repeal of the Government of India Act, 1935, and consequent a abolition of the Federal Court, by the Constitution.
Veeranna v. Chinna Venkanna, I.L.R. 1953 Mad. I079 and Daji Sahib Mane v. Shankar Rao Vithal Rao Mane, (1955) 2 S.C.R. 872, relied on.
There was, therefore, nothing on which Cl. 20 Of the Adaptation of Laws Order, 1950, could operate so as to keep it alive. Nor could this Court be considered to be a successor of the Federal Court so as to attract the operation of that clause.
State of Seraikella v. Union of India, (1951) S.C.R. 474, relied on.
Article I33 applied to all judgments, decrees and final orders of High Courts in Civil Proceedings passed after the commencement of the Constitution irrespective of the dates of their institution and if an appeal did not satisfy its requirement as to valuation it must be held to be incompetent. Any vested right of appeal that might have existed prior to the Constitution must be held to have been taken away by it by necessary implication.
Canada Cement Co. v. East Montreal, (1922) 1 A.C. 249, Durousseau v. United States, 3 L. Ed. 232 : 6 Cranch 307 and Baltimoye and Potomac Railroad Company v. J. H. Grant, 98 U.S. 23I : 25 L. Ed. 231, referred to.
Article 135 Of the Constitution could have no application to such a case as Art. 133 applied and there was no vested right to appeal to the Federal Court in relation to which jurisdiction was exercisable by that Court immediately before the commencement of the Constitution. The application for special leave must, therefore, be refused.
CIVIL APPELLATE JUIRISDICTION: Petition for Special Leave to appeal No. 170 of 1955 and Civil Miscellaneous Petition No. 579 of 1956.
Petition under Article 136 of the Constitution for special leave to appeal from the judgment and decree dated March 4, 1955, of the Andhra High Court in A.S. No. 301 of 1951.
M. S. K. Sastri, for the petitioner.
T. V. R. Tatachary, for the respondents Nos. 1 and 2.
M. C. Setalvad Attorney-General for India, for assisting the Court.
1957. February 1. The judgment of Das C.J., Bhagwati, B. P. Sinha and S. K. Das JJ. was delivered by Das C.J.
Venkatarama Ayyar J. delivered a separate judgment.
491 DAS C.J.-This is an application for special leave to appeal from the judgment passed on February 10, 1955 by the High Court of Andhra. The suit out of which this application arises was instituted on April 22, 1949, in the sub-court of Bapatla, which was then within the jurisdiction of the Madras High Court. The judgment of the trial court was passed on November 14, 1950, dismissing the suit. The plaintiff appealed. 0 In October 1, 1953, the Andhra State was formed and a new High Court was established under a. 28 of The Andhra State Act, 1953 (Act XXX of 1953), and apparently the appeal stood transferred to the High Court of Andhra under the provisions of s. 38 of the same Act. On March 4, 1955, the High Court of Andhra accepted the appeal, reversed the decree of the trial court and decreed the suit.
The application for leave to appeal to this Court was dismissed on the ground, inter alia, that the value of the property was only Rs. 11,400 and did not come up to the amount of Rs. 20,000. In this application the petitioner contends that the judgment being one of reversal and the value being above Rs. 10,000, he was entitled, as a matter of right, to come up to this Court on appeal and as that right has been denied to him by the High Court, this Court should, in exercise of its discretion, grant him special leave to appeal to this Court under Art. 136 of the Constitution.
It will be convenient at this stage to refer to the statutory provisions relating to appeal from any final judgment, decree or order of a High Court in India to a superior court. This was regulated by the provisions of the Letters Patent of each particular High. Court.' It will suffice for our present purpose to refer to cl. 39 of the Letters Patent, 1865 relating to the High Courts of the three Presidency towns. Under that clause an appeal could be taken to His Majesty in Council from any final judgment, decree or order of the High Court made on appeal or in exercise of its original jurisdiction by a majority of the full number of Judges of the said High Court or of any Division Court provided, in either case, the sum or matter at issue was of the amount or value of not less than 10,000 rupees or that 492 such judgment, decree or order involved, directly or indirectly, some claim, demand or question to or respecting property amounting to or' of the value of not less than 10,000 rupees or from any other final judgment, decree or order made either on appeal or otherwise as aforesaid when the said High Court should declare that the case was a fit one for appeal to His Majesty in Council. The requirements to be fulfilled for appeal to His Majesty in Council were also set out in ss. 109 and 110 of the Code of Civil Procedure , 1908. The Government of India Act, 1.935 by s. 200 established a Federal Court for India. Section 204 of that Act gave original jurisdiction to the Federal Court with respect to certain matters. Section 205 conferred appellate jurisdiction on the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involved a substantial question of law as to the interpretation of that Act or any Order in Council made there under and prohibited direct appeal to His Majesty in Council either with or without special leave in those matters. When the Indian Independence Act, 1947 was passed by Parliament it became necessary to enlarge the jurisdiction of the Federal Court to enable the Federal Court to entertain appeals which previously went to His Majesty in Council. For that purpose was enacted the Federal Court (Enlargement of Jurisdiction) Act, 1947, being Act I of 1948. Section 3 of that Act provided that as from the appointed day, i.e., from February 1, 1948, an appeal would lie to the Federal Court from any judgment to which the Act applied without the special leave of the. Federal Court, if an appeal could have been brought to His Majesty in Council under the provisions of the Code of Civil Procedure , 1908 or of any other law immediately in force after the appointed day and with the special leave of the Federal Court in any other case and that no direct appeal would lie to His Majesty in Council either with or without special leave from any such judgment. "Judgment to which this Act applied" was defined by s. 2(b) as meaning any judgment, decree or final 'order of a High Court in a civil, case 493 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. By s. 4 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, unless the records had been transmitted, were to be deemed to be proceedings and steps taken and orders made and certificates granted in connection with an appeal from that judgment to the Federal Court under the Act and would be concluded, or as the case may be, have effect, accordingly.
Under s. 5 every application to His Majesty in Council for special leave to appeal from a judgment to which the Act applied remaining undisposed of immediately before the appointed day would on that day stand transferred to the Federal Court by virtue of the Act and would be disposed of by that Court as if it had been an application duly made to that Court for special leave to appeal from the said judgment. This was followed by the Abolition of Privy Council Jurisdiction Act, 1949 (Act V of 1949), which was passed by the Constituent Assembly in September, 1949 and came into force on October 10, 1949, which was referred to as the 'appointed day'. Section 2 provided that as from the 'appointed day the jurisdiction of His Majesty in Council to entertain appeals and petitions from or in respect of any judgment, decree or order of any court or tribunal other than the Federal Court within the territory of India including appeals and petitions in respect of criminal matters whether such jurisdiction was exercisable by virtue of His Majesty's prerogatives or otherwise would cease.
Section 5 conferred corresponding jurisdiction on the Federal Court, that is to say, as from the 'appointed day the Federal Court was authorised, in addition to the jurisdiction conferred on it by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947, to have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council had by virtue of His Majesty's prerogatives or otherwise immediately before the 'appointed day'. All proceedings in respect of any 494 Indian appeal pending before His Majesty in Council immediately before the appointed day' were by s. 6 to stand transferred to the Federal Court and were to be disposed of by it in the exercise of the jurisdiction conferred on it by the Act.
It will be recalled that the suit out of which the present petition arises was filed on April 22, 1949. The petitioner contends that as from the date of the institution of the suit he acquired a vested right to appeal to the Federal Court which has since then been replaced by the Supreme Court. In support of this contention he relies on certain judicial decisions to which reference may now be made.
The leading case on the subject relied on by the petitioner is Colonial Sugar Refining Company Ltd. v. Irving(1). In that case the Collector of Customs acting under an Act called the Excise Tariff Act, 1902 required the appellants to pay pound 20,100 excise duty on 6,700 tons of sugar. The appellants disputed the claim. So they deposited the 'money with the Collector and then brought an action in the Supreme Court of Queensland against the Collector for recovering the sum so deposited. The writ in the action was issued on October 25, 1902. At the date of the institution of the action the Order in Council of June 30, 1860, gave a right of appeal to His Majesty in Council from the judgment of the Supreme Court. A special case having been stated for the opinion of the Full Court, that Court on September 4, 1903, gave judgment for the Collector. In the meantime the Judiciary Act, 1903 had been passed and it received the royal assent on August 25, 1903, that is to say about 10 days before the judgment was delivered by the Supreme Court.
By s. 38 the jurisdiction of the High Court of Australia' in certain specified matters was made exclusive of the jurisdiction of the several Courts of the States and by s. 39 it was made exclusive in all other matters except as therein provided. Sub-section 2 of s. 39 provided that the several Courts of the States would be invested with Federal jurisdiction in all matters above mentioned except those specified in s. 38, subject to certain (1) [1905] A.C. 369, 495 conditions and restrictions, one of which was that every decision of a Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, should be final and conclusive except so far as an appeal might be brought to the High Court. The result of this Act was that Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme Court and the only appeal from the Supreme Court under that Act lay to the High Court of Australia. The Supreme Court of Queensland having granted leave to the appellants under the Order in Council of 1860 the appellants filed the appeal in the Privy Council. The respondent filed a petition before the Privy Council praying that the appeal might be dismissed with costs on the ground that the right of appeal to His Majesty in Council given by the Order in Council of June 30, 1860, under which the leave had been granted, had been taken away by the Judiciary Act, 1903 and that the only appeal from a decision of the Supreme Court of Queensland lay to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judiciary Act, 1903, on which the respondent relied, were not retrospective so as to defeat a right in existence at the time when the Act received the royal assent. Their Lordships of the Privy Council dismissed the respondent's petition and observed 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 Hi& 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 496 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 Lordships 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." 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 principle of the above decision was applied in India by Jenkins C.J.in Nana bin Aba v. Skeku bin Andu (1) and by the Privy Council itself in Delhi Cloth and General Mills Co.Ltd. v. Income Tax Commissioner, Delhi (1). In Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (supra) two assessment orders were made, one on June 12, 1923, and the other on March 23, 1924. In each case the sum in dispute exceeded Rs. 10,000. At the request of the assessee two cases were stated by the Commissioner to the High Court under s. 66 of the Indian Income Tax Act. The High Court affirmed the decisions of the Commissioner in January, 1926. The petitioner applied for leave to appeal to the Privy Council. On April 1, 1926, came the Indian Income Tax Amendment Act, 1926 which added s. 66A to the Indian Income Tax Act which gave a right of appeal. The learned Judges of the High Court were of opinion that the petitioners had a right of appeal to His Majesty in Council provided they could in effect bring their cases within the requirements of a. 109 (c) of the Code of Civil Procedure but not otherwise. The High Court dealt with the applications for (1) [1908] I.L.R. 32 Bombay 337.
(2) [1927] L.R. 54 I.A. 421; I.L.R.9 Lah. 284.
497 certificates on that footing but dismissed them and as it refused to certify that the case was a fit one for appeal to His Majesty in Council, the company applied to the Privy Council for special leave to appeal from the two orders of the High Court passed in January, 1926. It will be noticed that in January, 1926 when the orders were made by the High Court under s. 66, s. 66A was not in the Act at all and it had been held by the Privy Council in Tata Iron and Steel Company Ltd. v. Chief Revenue Authority(1), that there was no right of appeal from a judgment delivered by the High Court under s. 66 of the Indian Income Tax Act. -Therefore the orders of the High Court were final when they were made in January 1926. Such was the position until April 1, 1926, when s. 66A was added to the Act. The question was whether this section destroyed the finality that had attached to the orders when they were made and gave any right of appeal at all from the orders of the High Court made before the Act of 1926 came into force. Their Lordships answered the question as follows:
" The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in Colonial Sugar Refining -Co. v. Irving(1), where, it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear (1) [1923] L.R. 50 I.A. 212.
(2) [1905] A.C. 369.
498 suggestion that a judgment of the High Court referred to in sub-s. 2 is one which under sub-s. 1 has been. pronounced by " not less than two judges of the High Court ", a condition which was not itself operative, until the entire section came into force.
In their Lordships' judgment, therefore, the petitioners in these cases have no statutory right of appeal to. His Majesty in Council. Only by an exercise of the Prerogative is either appeal admissible." The question of finality of order was considered. by this Court in the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others (1). In that case the facts shortly stated were as follows: On October 10, 1947, the appellant had arranged with a Pakistani for the exchange of certain properties she left behind at Lahore at the time she migrated to India after the partition for certain lands in a village in the State of Delhi belonging to that Pakistani.
On February 23, 1948, the appellant applied to the Additional Custodian, for confirmation of the transaction under s. 5-A of the East Punjab Evacuees' (Administration of Property) Act, 1947 as amended in 1948. Section 5-B of that Act provided that if the original order under s. 5-A was passed by an Additional or Deputy Custodian of Evacuee Property, any person aggrieved by such order might appeal within 60 days, from the date of the order to the Custodian of Evacuee Property; and subject only to the decision on such appeal, if any, the order passed by the Assistant or Deputy Custodian would be final and conclusive. For some reason or other the appellant's application for confirmation was not taken up promptly, but was adjourned from time to time. -In the meantime the East Punjab Evacuees' (Administration of Property) Act, 1947 was repealed by ordinances, which in their turn were eventually replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950). Section 27 (1) of the Act empowered the Custodian General, either on, his own motion or on application made to him in this behalf, to call for the record of any proceeding in which any district judge or Custodian had passed an (1) [1955] 2 S.C.R. 1117.
499 order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass order in relation thereto as he thought fit. In other words s. 27 (1) of the new Act gave a power of revision to the Custodian General. On March 20, 1952, the Additional Custodian acceded to the appellant's application and confirmed the exchange. On May 59 19529 the appellant applied to be put in possession. Thereupon a notice was issued under s. 27 (1) of the Central Act XXXI %of 1950 to the appellant to show cause why the order of the Additional Custodian dated March 20, 1952, should not be set aside. On May 20, 1953, the Custodian General passed an order setting aside the order of confirmation passed by the Additional Custodian on the ground, inter alia, that notice had not been served on all parties interested and directed the Custodian to decide the case on notice to all parties interested. The petitioner obtained special leave to appeal to this Court against the order of the Custodian General of Evacuee Property. At the hearing of the appeal the learned counsel for. the appellant contended that according to the principle ,laid down by the, Privy Council in Colonial Sugar Refining Co. Ltd. V. Irving (supra), she had, on the filing of her application for confirmation in 1948, acquired a vested right to have it determined under. s. 5-A with the attribute of finality and conclusiveness attaching to the order when made just as a litigant acquired a vested right of appeal on the commencement of his suit or proceeding and that vested right could not be taken away by subsequent statute except by express provision or by necessaryintendment. There was, according to the appellant, nothing in s. 27 of the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950), which expressly or by necessary intendment took away that vested right. It will' be noticed that at the date. of the commencement of the Central Act XXXI of 1950 no order had actually been made to which the attribute of finality could attach. In these circumstances this Court repelled the contention of the appellant with the following words:
500 " However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do not so decide-no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of section 5-B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order. Even if there be,, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner (1). We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. Irving (supra) cannot be invoked in support of a case of the kind we are dealing with." It is clear from the above passage that this Court, on that occasion, left open the question whether a right of appeal in respect of a pending action could be, treated as a substantive right vesting in the litigant on the commencement of the action. It becomes, necessary, therefore, to go into that question in detail.
In Ramakrishna Iyer v. Sithai Ammal (2 ), a magistrate on August 4, 1923, granted sanction under s. 195 of the Code of Criminal Procedure to prosecute the the respondent for having preferred a false charge of dacoity against the appellant. Sub-section 6 of s. 195, as it stood at that date, provided that the sanction might be revoked or granted by any authority to which the authority giving or refusing it was subject. Pursuant to the sanction the complainant filed a petition of complaint. On August 22, 1923, the respondent applied for revocation of the sanction but no order was made. On September 1, 1923, s. 195 of the Code (1) (1927) I.L.R. 9 Lahore 284.
(2) (1925) I.L.R. 48 Mad. 620 (F.B).
501 of Criminal Procedure was amended. The relevant portion of the amended section was in these terms:
" 195. (1) No court shall take cognizance---(a).........................................
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate; or After the amendment came into force the respondent received notice of the prosecution already instituted against her.
In 1924 she filed another petition for revocation of the sanction. The magistrate revoked, the sanction. The complainant petitioner filed this petition against this order of revocation of sanction. In dismissing this application a Full Bench of five Judges of the Madras High Court presided over by Courts Trotter C. J. referred to the decision of the Privy Council in Colonial Sugar Refining Co.
Ltd. v. Irving (supra) and quoted the passage in Lord Macnaghten's judgment as laying down the principle in clear language. At page 629 Coutts Trotter C. J., who delivered the judgment of the Full Bench, stated as follows :"The question we have to decide is whether this was a right of entering the Superior Court and invoking its aid and interposition to redress the error of the Magistrate's Court below and therefore it seems to us that, on principle and those very weighty authorities. we ought to hold that this is not a case of procedure but it is a case of a real right to invoke the aid of a higher tribunal. We are also of opinion that those principles are really.involved and carried out by section 6 of the General Clauses Act X of 1887." It will be noticed that even the peremptory language of the amended s. 195 quoted above was not regarded 502 as containing anything which expressly or by necessary intendment took away the right which had vested in the respondent under old s. 195(6) when the sanction had been granted against her on August 4,.1953, to have it revoked.
In Daivanayaka Reddiyar and two others v. Renukambal Ammal (1), a suit was filed on March 21, 1921, by a widow for maintenance. It was valued at rupees 14,600 according to the provisions of the Court Fees Act (VII of 1870) then in force. Under s. 13 of that Court Fees Act appeals lay to the district court or the High Court according as the value of the subject matter of the suit was below or over rupees 5,000., On April 18, 1922, the Madras Court Fees Amendment Act (V of 1922) came into force. Section 7(2) of the old Court Fees Act (VII of 1870) was amended. The trial court decreed the suit on March 13, 1923. On April 19, 1923 the defendants filed an appeal in the High Court. In the appeal the court fee was paid on Rs. 2,633-5-4 calculated according to the valuation in terms of the amended Act. An objection was taken on behalf of the plaintiff-respondent that the appeal did not lie to the High Court but should have been filed in the district court. The contention was that though the suit was valued at more than Rs. 5,000 under the law in force at the time of filing of the plaint, yet the valuation of the suit according to the amended Court Fees Act at the time the appeal was presented would have been less than Rs.
3,000 and, therefore, the appeal, to the High Court was incompetent. The following question was referred to the Full Bench:
" Does the appeal against the decree in a suit in which the valuation of the relief claimed. according to the law in force at the date of the plaint was more than Rs. 5,000 but at the time of the appeal is less than Rs. 5,000 owing to the amendment of the Court Fees Act, lie to the High Court or to the District Court The Full Bench consisting of three Judges held that the appeal had properly been brought before the High court. The Full Bench observed:
(1)[1927] I.L.R. 50 Mad. 857.
503 " It is argued that this section does not confer any right of appear to the High Court in definite classes of suits, but that the right of appeal is merely given to the Court authorised to hear appeals and the question of whether the Court is the District Court or the High Court depends on the valuation. of the suit at the time of filing the appeal. It is difficult to treat this argument as in any way distinguishing the case from that of Colonial Sugar Refining Company v. Irving (1), for, in both cases there was, when the suit was filed, a vested right of appeal to a particular tribunal, which is taken away by a subsequent enactment.
According to the argument, when the right is taken away by a subsequent alteration in a mere fiscal enactment, the case is not the same as when the right depends on substantive law. This is untenable. It Has been held by the Privy Council that this cannot be done and we are bound by that general expression of the law and must follow it." Bala Prasad and others v. Shyam Behari Lal and others (2) which was a decision by a single judge who followed the Privy Council decision does not require any further consideration and we may pass on to Ram Singha v. Shankar Dayal (3) which is very important. In the last mentioned case a suit for rent was filed on July 12, 1926. At that time the North-Western Provinces Tenancy Act, 1901 (U.P. Act II of 1901) was in force. Section 177 of that Act gave a right of appeal from the decision of the Assistant Collector to the District Judge when the amount or value of the subject matter of suit exceeded Rs. 100. On September 7, 1926, Agra Tenancy Act (U. P. Act III of 1926) came into force. It repealed the old Act of 1901. Section 240 of the new Act reproduced s. 175 of the old Act providing that no appeal would lie from any decree' or order passed by any court under this Act except as provided in this Act. The material portion of s. 242, which corresponded to s. 177 of the old Act provided as follows:"242 (1). An appeal shall lie to the 'district judge from the decree of an assistant collector of the first (1) [1905] A.C. 369. (3) (1928) I.L.R. 50 All. 965 (F.B.).
(2) (1928) 26 A.L.J.4o6.
65 504 class or of a collector in any of the suits included in group A of the Fourth Schedule in which(a) the amount or value of the subject-matter exceeds rupees two hundred; or (b)...........................................................
On December 23, 1926 i.e., after the new Act came into force, the suit was decreed by the assistant collector. The defendant presented an appeal to the district judge. The district judge returned the memorandum of appeal. The defendant presented the memorandum before the Collector of Etawah and that officer was of opinion that he had no jurisdiction to entertain the appeal and referred the case to the High Court under s. 207 of the Agra Tenancy Act. The reference came up before a Bench of the Allahabad High Court which referred the following question to a Full Bench:
" Whether the filing of an appeal is governed by the law obtaining at the date of the institution of a suit or by the law that may prevail at the date of the decision of it, or at the date of the filing of the appeal ?" It will be noticed that the question definitely called for a decision as to when the right of appeal vested in the litigant. A Full Bench of three Judges presided over by Mr. Justice Sulaiman, then Acting Chief Justice of Allahabad, expressed the following opinion:
" In our opinion the point is concluded by the pronouncement of their Lordships of the Privy Council in the case of Colonial Sugar Refining Company Ltd. v. Irving (1). In that case, ordinarily an appeal lay to their Lordships of the Privy Council from an order of the Supreme Court. While the matter was pending in that court, the law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council held that the new Act could not deprive the party of his right to appeal to the Privy Council. Lord Macnaghten remarked at page 372: ' 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'." (1) [1905] A.C. 369.
505 "That principle was reaffirmed by their Lordships it the case of Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner(1). The principle has been followed by a Full Bench of the Madras High Court in the case of Daivanayaga Reddiar v. Renukamba, Ammal(2). Dalal J. has taken the same view in the case of Bala Prasad v. Shyam Behari Lal(3). " The Full Bench answered the question as follows:
" Our answer to the reference is that the right to appeal to the court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision, or at the date of the filing of the appeal." It will be noticed that the language of s. 242 (1) of the new Act which came into force before the decree was passed was not regarded as containing anything which expressly or by necessary intendment took away the right of appeal which vested in the parties on the date of the institution of the suit on the mere ground that the decree had been made after the new amendment came into force. This case clearly establishes that the right of appeal vests in the parties at the date of the suit and is governed by the law prevailing at that time and the date of the decree or of the filing Of the appeal does not affect this right unless some subsequent enactment takes away this right expressly or by necessary intendment. It also establishes that the wide language of s. 242(1) of the new Act, namely "An appeal shall lie to the District Judge from the decree of an Assistant Collector........ could not be construed as covering the decree passed after the date of the new -Act in a suit instituted before its date.
A Full Bench of the Lahore High Court adopted and applied the Privy Council decision in the case of Kirpa Singh, v. Ajaipal Singh and others (4). It was regarded as settled that the right of appeal was not a mere matter of procedure but was a vested' right which inhered in a party from the commencement of the action in the court of first instance and that such right (1) [1927] I.L.R. 9 Lah. 284.
(2) [1927] I.L.R. 50 Mad. 857.
(3) [1928] 26 A.L.J. 406.
(4) [1928] I.L.R. 10 Lah. 165 (F.B.).
506 could not be taken away except by an express provision or by necessary implication.
The decision of a Special Bench of the Calcutta High Court in Sadar Ali v. Dalimuddin (1) is very instructive. There a suit was filed in the munsiff's court at Alipur on October 7, 1920, for a declaration that the defendant had no right to use a certain pathway and for a permanent injunction against the defendant. On July 17, 1924, the trial court dismissed the suit. On July 17, 1926, the subordinate judge dismissed the plaintiff's appeal. On October 4, 1926, the plaintiff filed a second appeal in the High Court. At that time el. 15 of the Letters Patent permitted a further appeal to the High Court from the judgment of a single judge of the High Court, except in certain cases which are not material for our present purpose, without any leave of the single judge. During the pendency of the second appeal cl. 15 of the Letters Patent was amended and the amendment came into force on January 14, 1928. The amended Letters Patent imposed a condition that a further appeal would lie only " where the judge who passed the judgment declares that the case is a fit one for appeal." It is well-known that this amendment was made in order to reduce the number of Letters Patent Appeals from the judgments of single judges which had assumed alarming proportions in every High Court. After the Letters Patent were amended the second appeal was dismissed by the single judge on April 4, 1928. The learned single judge declined to grant leave under the amended Letters Patent. On 30, 1928, the appellant filed an appeal on the strength of el. 15 of the Letters Patent as it stood before the amendment and obtained a rule calling upon the respondent to show cause why his appeal should not be accepted and registered without the leave of the single judge. The contention of the appellant was that the amended clause could not be applied to his appeal, for to do so would be to apply, it retrospectively and to impair and, indeed, to defeat his substantive right which was in' existence prior to the date of the amendment:. The appellant claimed that on October 7, 1920, when (1) (1929) I.L.R. 56 Cal. 512.
507 the suit was filed, he had vested in him by the then existing law, i.e., cl. 15 of the Letters Patent as it then stood, a substantive right of appeal from the decision of the single judge and that an intention to interfere with it, to clog it with a new condition, or to impair or imperil it, could not be presumed, unless it was clearly manifested by express words or necessary intendment. Reliance was placed on the judgment of Garth C.J. in Runjit Singh's case (1) and on other Indian decisions to the effect that the suit and all appeals from the decree made therein were to be regarded as one legal proceeding on the principle stated by West J.
in Chinto Joshi v. Krishnaji Narayan (2) namely "that the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceediros connected by an intrinsic unity". Rankin C.J. delivering the judgment of the Special Bench consisting of five learned judges of the Calcutta High Court, adverted to the difficulty in supposing " that the amendment made by the Letters Patent, which came into force in January last, was made with any other view than to obviate unreasonable, or unreasonably prolonged litigation : or to suppose that the date of the suit has any rational bearing upon that object or as distinguishing one case from another for this purpose." He was conscious that it might be " thought difficult to arrive at an opinion that the reform introduced is reasonable and necessary but that it should in effect be postponed for years." He put the onus on the appellant by saying that the 66 whole weight of these considerations has to be borne by the applicant's argument that the Letters Patent as they stood on the 7th October, 1920, conferred upon him at that date an existing right." '.In spite of these difficulties the Full Bench was constrained to come to the decision that the applicant had discharged that onus., At page 518 the learned Chief Justice observed:
"Now the reasoning of the Judicial Committee in the Colonial Sugar Refining Company's case (3) is a Conclusive authority, to show that rights of appeal are not matters of procedure;
and that the right to enter the (1) (1878) I.L.R. 3 Cal. 662 at page 665.
(2) (1879) I.L.R. 3 Bom. 214 at page 216.
(3) [1905] A.C. 369.
508 superior court is, for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that. the right arises at the date of the suit.
It does not arise as regards Court B alone, when the suit is instituted in Court A and as regards Court C when the first appeal is lodged before Court B. A " present right of Appear " (cf. section 154 of the Code of Civil Procedure ) is a different matter. The principle must, I think, involve that an admixture of different systems is not to be applied to a single case. It is quite true that the suitor cannot enter Court C without going through Court B, but neither can he enter Court B till Court A has given its decision. The right must be a right to take the matter to Court C in due course of the existing law." Further down the Special. Bench posed before them a question : "Whether it is any necessary part of the intendment of the Letters Patent that they should operate upon appeals arising out of suits instituted before 14th January, 1928, when such appeals were heard after that date ?" In spite of the wide language of the amended cl. 15 of the Letters Patent, namely, that an appeal shall lie from the judgment of single judge only where the judge who passed the judgment declared that the case was a fit one for appeal, the Special Bench found nothing in that language to indicate that it applied to a decree passed after the amendment came into force or that it took away the vested right.
The Special Bench after saying that_" As there is-nothing in the language of the Letters Patent to evidence this intention, we must enquire whether it is manifest from the subject-matter"-went on to deal with the subject-matter and observed:
" Now in this case, I cannot say that it appears to me that there is very much material upon which to base a definite conclusion that the intention was to bring pending suits under the new system. The long postponement of a desirable reform may have been thought wise, and it would hardly be correct for a court of law to proceed merely upon its own opinion 509 as to the degree of respect to which the right of a third appeal is entitled. In this aspect the present case may, reasonably be thought less strong than the case of Bourke v. Nutt (1894) 1 Q.B. 725, where a similar argument was ultimately negatived. If bankrupts may continue to become members of school boards, I cannot say that litigants may not continue to have a third appeal unless it otherwise appears that this construction of the Letters Patent is not reasonably possible. Far be it from me to distinguish between such forms of excess or to divide such claims to toleration." In re Vasudeva Samiar (1) was also concerned with the effect of the amended el. 15 of the Letters Patent on a preexisting right of appeal. In that case the suit was filed in the District Munsif's Court on July 30, 1919. The second appeal was filed in the High Court on July 15, 1924. The amended el. 15 of the Letters Patent came into force in Madras on January 31, 1928. On February 9, 1929, the second appeal was disposed of. An appeal was filed without any leave of the learned single judge. The High Court office took objection to the maintainability of the appeal by reason of the amended Letters Patent and the case was placed before the Full Bench consisting of five judges under the orders of Coutts Trotter C. J. for the determination of the question.
Coutts Trotter C. J. entirely concurred in the reasoning of Rankin C. J. and had no answer to it. He adverted to the argument that the result would be that cl. 15 of the amended Letters Patent will remain a dead letter for many years to come and repelled it in the following sentence: " The result is regrettable, because it makes the amended Letters Patent, which were doubtless brought into being to relieve the heavy burden of Second Appeals, which in this Court have now reached the startling figure of 5,000 cases, unable to effect any substantial relief to us for five years." For the moment we pass over his observation in connection with the case of Canada Cement Co. v. East Montreal (Town of) (2) and will refer to it later on. The point for our present purpose is that the Full Bench did not (1) (1928) I.L.R. 52 Mad. 361.
(2) [1922] 1 A.C. 249.
510 think that the opinion expressed in that case was in conflict with the earlier decision in Colonial Sugar Refining Co. Ltd. v. Irving (supra), which was authoritatively adopted and reconfirmed in the later case of Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (supra). The learned Chief Justice concluded his judgment with the following words:
" We must therefore hold, however reluctantly, that the institution of the suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career, unless the legislation has either abolished the Court to which an appeal then lay or has expressly -or by necessary intendment given the Act a retrospective effect. We agree with the Calcutta High Court that the words of the amended Letters Patent do not admit of such an interpretation." The principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (supra) was applied by a Full Bench of the Nagpur High Court in Radhakishan v. Shridhar (1).
The doctrine laid down by the Privy Council ill Colonial Sugar Refining Co. Ltd. v. Irving (supra) has also been applied by the courts in India to cases where the subsequent legislation did not take away the entire right of appeal but imposed certain onerous conditions on such right. The case of Nagendra Nath Bose v. Mon Mohan Singh (2) is a case of that type. In that case the plaintiff instituted the suit for rent valued at Rs. 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on November 20, 1928, for Rs. 1,600. On December 19, 1928, an application was made under 0. 21, r. 90 of the Code of Civil Procedure by the petitioner who was one of the judgment debtors for setting aside the sale. That application having been dismissed for default of his appearance, the petitioner preferred an appeal to the District Judge, Hooghly, who refused to admit the appeal on the ground that the amount, recoverable in (i) I.L.R. 1950 Nag. 532 (F.B.). (2) 34 C.W.N. 1009; A.I.R. (1931) Cal. 100.
511 execution of the decree had not been deposited as required by the proviso to s. 174 (c) of the Bengal Tenancy Act as amended by an amending Act of 1928. The contention of the petitioner was that the amended provision, which came into force on February 21, 1929, could not affect his right of appeal from the decision on an application made on December 19, 1928, for setting aside the sale. Mitter J. said:
"We think the contention of the petitioner is well-founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of Order 43, rule (1), of the Code of Civil Procedure . That right was unhampered by any restriction of the kind now imposed by section 174 (5), proviso. The Court was bound to admit the appeal whether appellant deposited the amount recoverable in execution of the decree or not.
By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment, came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial-for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal." That decision was approved by a Bench of this Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh (1). In that case on November 28, 1947, the appellant submitted a return to the Sales Tax Officer. At that time s. 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 provided (1) [1953] S.C.R. 987.
66 512 that no appeal against the order of assessment should be entertained unless it was shown that such amount of tax as the appellant might admit to be due from him had been paid.
Pending the assessment on the appellant's return the Act was amended on November 25, 1949, so as to provide that no appeal would be admitted unless such appeal was accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. The Assistant Commissioner to whom the return was transferred for disposal made an assessment on April 8, 1950. The appellant preferred an appeal on May 10, 1950, without depositing the amount of tax in respect of which he had appealed. The Board of Revenue was of opinion that s. 22 (1) as amended applied to the case as the assessment was made, and the appeal was preferred, after the amendment came into force, and rejected the appeal. The Bench of this Court held, following the leading Privy Council decision and some of the other decisions referred to above, that the right of appeal was a matter of substantive right and not merely a matter of procedure, that this right became vested in a party when the proceedings were first initiated and that such right could not be taken away except by express enactment or necessary intendment.
Accordingly it was held that the appellant had a vested right of appeal when the assessment proceedings were initiated in 1947, that his right of appeal was governed by the law as it existed on that date, that the amendment of 1950 could not be regarded as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal, if it whittled down the right itself, and that it had no retrospective effect as the amended Act of 1950 did not expressly or by necessary intendment give it restrospective effect and the appeal could not, therefore, be rejected for non-payment of tax in respect of which the appeal was preferred.
The case of Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce Ltd. (1), is also instructive. There were two winding up proceedings regarding two companies, (1) [1953] S.C.R. 752, 513 namely, the Marwari Chamber of Commerce Ltd. and Aggarwal Chamber of Commerce Ltd. The Official Liquidator settled the list of contributories in both cases. On June 4, 1946, payment order for Rs. 24,005-7-3 was made by the court in the case of Marwari Chamber of Commerce Ltd. At that time Patiala States Judicature Firman of 1999 was in force.
Under s. 44 of that Firman a certificate of fitness was required for an appeal from a judgment of a single judge only if the judgment, decree or order sought to be appealed from was made in the exercise of Civil Appellate Jurisdiction. After the payment order had been made Pepsu Ordinance (X of 2005) was promulgated. Section 52 of the Ordinance required a certificate of fitness for appeal in all cases, including the winding up cases. On February 2,1950, an application was made in respect of the Marwari Chamber of Commerce Ltd. under s. 152 of the Civil Procedure Code for amendment of the payment order by substituting Rs. 21,805-7-3 for Rs. 24,005-7-3. On March 16, 1950, the above application was dismissed by the judge, who refused to grant the certificate of fitness. An appeal against this order refusing to amend the payment order was filed without any certificate. On May 1, 1950, that appeal was dismissed for want of the necessary certificate. An appeal was brought to this Court on certificate of fitness granted by the Pepsu High Court. In the case of Aggarwal Chamber of Commerce Ltd. the payment order was made on January 18, 1949, by the Liquidation Judge. On February 19,1949, an appeal was preferred to the High Court. At that time the Patiala States Judicature Firman 1999 was in force. Then came the Pepsu Ordinance (X of 2005). The High Court having dismissed the appeal a further appeal was filed in this Court on certificate of fitness granted by the High Court.
The question for decision was whether the appellant had a vested right of appeal to this Court in either of two cases.
This Court dismissed the appeal in connection with The Marwari Chamber of Commerce Ltd., not on the ground that the appellant had no vested right of appeal but, on the ground that the application for amendment, which was filed 514 on February 2, 1950, was an independent proceeding and as that proceeding was instituted after the Pepsu Ordinance (x of 2005), came into operation, the vested right of appeal arising out of that proceeding was governed by that Ordinance and a certificate was necessary. It was observed that there was no warrant for the view that the amendment petition was a continuation of the suit or proceeding thereunder, that it was in the nature of an independent proceeding though connected with the order of which amendment 'was sought and that such a proceeding was governed by the law prevailing on its date, which admittedly was Pepsu Ordinance (X of 2005), which provided, under s.
52, for a certificate. The court, however, allowed the appeal in the matter of Aggarwal Chamber of Commerce Ltd. following the principle laid down in the case of Colonial Sugar Refining Co. Ltd. v. Irving (supra), for in that case there was no new proceeding and the right of appeal arising out of the proceeding resulting in the payment order had vested at the commencement of those proceedings which was prior to the date when the Pepsu Ordinance (X of 2005) came into force.
Similar principle has also been adopted in cases, where court fees were increased by subsequent amendment of the Court Fees Act. Reference may be made to the cases of R. M. Seshadri v. Province Madras (1); In re Reference under section 5 of Court Fees Act(2); Sawaldas Madhavdas v.. Arti Cotton Mills Ltd. (3). There are certain other decisions which also adopted the same principle but reference will be made to them later on in connection with the question of construction of Art. 133 of the Constitution.
From the decisions cited above the following principles clearly emerge:
(i) 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.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(1) A.I.R. 1954 Mad. 543.
(2) I.L.R. 1955 Bom. 530.
(3) A.I.R. 1955 Bom. 332; 57 Bom. L.R. 304.
515 (iii) 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.
(iv) 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.
(v) 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.
In the case before us the suit was instituted on April 22, 1949, and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and 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 up in appeal from the sub-court to the High Court and from the High Court to the Federal Court. under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with cl. 39 of the Letters Patent and ss. 109 and 110 of the Code of Civil Procedure provided. the conditions thereof were satisfied.
The question for our consideration is whether that right has been taken away expressly or. by necessary intendment by any subsequent enactment. The respondents to the application maintain that it has been so taken away by the provisions of our Constitution.
In construing the articles of the Constitution we must bear in mind certain cardinal rules of construction. It has been said in Hough v. Windus (1),that "statutes should be interpreted, if possible, so as to respect vested right." The golden rule of construction is that, in the absence of anything in the enactment to ,show that it is to have retrospective operation, it cannot (1) [1884]12 Q.B.D. 224 at 237.
516 be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed (1). The following observation of Rankin C.J. in Sadar Ali v. Dalimuddin (supra) at page 520 is also apposite and helpful: "Unless the contrary can be shown the provision which takes away the jurisdiction is itself subject to the implied saving of the litigant's right." In Janardan Reddy v. The State (2) Kania C.J. in delivering the judgment of the Court observed that our Constitution is generally speaking prospective in its operation and is not to have retroactive operation in the absence of any express provision to that effect. The same principle was reiterated in Keshavan Madhava Menon v. The State of Bombay (3) and finally in Dajisaheb Mane and Others v. Shankar Rao Vithal Rao (4) to which reference will be made in greater detail hereafter.
In the next place we must take into account the surrounding circumstances that existed at the time when our Constitution makers framed the Constitution and for which provision had to be made by them. In construing the Articles relating to the appellate jurisdiction of this Court it is well to remember the several categories of persons who were at the date of the Constitution, interested in the right of appeal from judgments, decrees or final orders of a High Court to a superior court in one way or another. There were seven categories of persons so interested, namely(1) Those who were aggrieved by a judgment of a High Court in what was British India passed before the commencement of the Constitution in a civil proceeding aris
