TMI Blog1928 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ances it is plain enough that the applicants have no right of appeal if the present case is to be governed by the terms of the new clause which by the said Letters Patent has been substituted for the 15th clause of the Letters Patent of this High Court as they stood prior to 14th January 1928. The contention of the applicants is that the new clause cannot be applied to this case because to do so would be to apply it retrospectively, and so as to impair and indeed to defeat a substantive right which was in existence prior to 14th January 1928. For this proposition the judgment of the Judicial Committee in Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 is cited and it is clear enough that the law as there laid down is applicable in India : Delhi Cloth Co. v. Income-tax Commissioner and Nana v. Sheku [1908] 32 Bom. 337. 4. The only Indian decision upon the effect of an amendment of the Letters-Patent as regards rights of appeal would appear to be that of Framji v. Hormasji [1866] 3 B.H.C.R. 49. The case had been decided at first instance by two Judges and under the Letters Patent of 1862 an appeal lay within the High Court (in practice an appeal to three Judges). By the Lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity. 8. On these grounds the applicants claim that on 7th October 1920 when the suit was instituted their right to a Letters Patent appeal from the decision of a single Judge was a substantive right vested in them by the existing law and that an intention to interfere with it, to clog it with a new condition, or to impair or imperil it, cannot be presumed,, and cannot be affirmed, unless it has been clearly manifested by express words or necessary intendment. 9. Now there is a certain paradox in regarding the right to appeal within the High Court from the decision of a single Judge as a right vested in the litigant at the date of the suit, since it is in no way certain that the case will ever be decided by a single Judge. Again as the right of second appeal is the right given by Section 100, Civil P.C., to appeal to the High Court it does not seem unreasonable that a litigant should take the internal arrangements of the High Court as he finds them when he gets there. If under the Letters Patent all second appeals had been required to come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her this element would make the reasoning of the Judicial Committee in the Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 inapplicable to the present case is a question which must be answered in the negative, if, as I think, the applicant at the date of the suit had a right to the use of the then existing system of appeals. But this question is I think academic in view of the effect of Section 111 of the Code upon the change introduced by the new Letters Patent. The new clause treats all second appeals in the same way, though it is in the power of the Court by its rules, and of the Chief Justice by administrative action, to ensure that only those second appeals shall be laid before a single Judge in which the value of the subject-matter is below a given limit. Nothing can be founded therefore in the circumstance that by the rules of this Court ₹ 1,000 is imposed as a limit, that in practice ₹ 50 is the limit and that any single Judge can direct the case to be laid before a Bench. Theoretically cases are brought to this Court on second appeal only if they are valued at less than ₹ 5,000. This valuation, however may under the Suits Valuation Act be of an arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law be applicable to a statute dealing with the like subject-matter. 14. In this view the only question which remains is the question whether the new clause can be given retrospective effect. The provision that the new Letters Patent shall come into force on the date of publication in the Gazette does not operate to give it such effect. Nor does the fact that the jurisdiction and authority of the Court is the primary subject of the Letters Patent found a valid argument to the effect that after the date of commencement the Court can have no authority to entertain such an appeal as this. Unless the contrary can be shown the provision which takes away jurisdiction is itself subject to the implied saving of the litigants' rights. Indeed that there is an implied saving of such rights in some cases cannot well be denied. It will not be supposed, for example, that jurisdiction is taken away as regards cases heard by a single Judge on second appeal prior to the date of commencement, viz., 14th January 1928, on which date for the first time the Judge had any duty or right to determine whether the case was fit for further appeal. 15. The question before us is thus narrowed down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground which should be mentioned. Clause 15 of the Letters Patent is not read with what is now Section 108, Government of India Act, (formerly Sections 13 and 14, High Courts Act of 1861). It puts a limit to the power that can be entrusted by the Court to the discretion of a single Judge, and both the rules of the Court and the administrative action of the Chief Justice have to be controlled by its provisions. It follows that when the amended clause begins to operate at all, it may well become necessary that second appeals should be differently dealt with according as they arise from suits filed before or after the 14th January 1928. This is likely to cause much inconvenience which would be avoided by treating the clause as applicable to all second appeals heard by a single Judge after the said date. Such an argument, however, falls obviously short of what is required to entitle the Court to draw the inference that retrospective effect must have been intended by the new clause. 20. No clear inference can, in my opinion, be drawn from that part of the new Letters Patent which deals with difference of opinion between the Judges of a Division Bench and I do not think it necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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