TMI Blog1952 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 10,000 but less than ₹ 20,000. The value of the subject-matter of the proposed appeal was above ₹ 20,000 according to petitioners and below ₹ 20000 according to the respondents, though presumably it was above ₹ 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 ₹ 20000, because the value was over ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ₹ 10000 and less than ₹ 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles 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 Goun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 11000 and ₹ 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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