TMI Blog1951 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... decided that all second appeals in which the value of the appeal does not exceed ₹ 2,000/- in a land suit or ₹ 5,000/- in a money or unclassed suit should in future be placed before and decided by a single judge. The new rule came into force on the 8th May 1951. 3. When the first batch of second appeals which were regulated by the new rule was placed before a learned Judge of this Court an objection was promptly taken that it was not within the competence of this Court to make a rule which was calculated to divest litigants of their vested rights of appeal to the Supreme Court. As the point raised is of considerable importance and as it is likely to affect a large number of appeals which are pending in this Court the following question has been referred to us for decision, namely; Whether the amendment to Rule 1 Chapter 3-B High Court Rules and Orders Volume V governs appeals arising from cases instituted before the 8th of May 1951? 4. Prior to the enactment of this rule certain second appeals in which the amount in controversy did not exceed the figures mentioned above could be heard only by a Bench of two or more Judges and the litigants who were aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce after the statutes are passed, or retrospective, that is those which relate back to a previous transaction and give it some different legal effect from that which it had under the law when it occurred. As laws are usually enacted so as to be effective only in future and as there is a basic presumption that the Legislature does not intend to change the character of past transactions, it is a fundamental rule of interpretation that a statute is presumed to operate prospectively and not retrospectively unless the words used or the objects to be accomplished clearly indicate that a retrospective operation was intended. This is particularly the case when the statute disturbs, damages or destroys existing or vested rights or creates new obligations with respect to past transactions. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Even if the language of the statute clearly and imperati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 'Chappell v. Purday (1843) 12 M W 303; Hitchcoch v. Way (1837) 6 AE 943; 'Paddan v. Bartlete', 3 Id 884. See also Turnbull v. Forman (1885) Q B D 234; 'Hough v. Windras 12 Id 224, 'Baston Regis Union v. Liverpool Overseers 3 Id 295; 'Young v. Hughes (1859) 4 HN 76 'Venugopala Reddiar v. Krishnaswamy Reddiar' MANU/FE/0006/1943MANU/FE/0006/1943. Again, it has been held that a statute should not be so construed as to deprive a litigant of a vested right of action which accrued to him before it was passed, unless of course the words taking away the right are clear and unambiguous 'Smithies v. National Association of Plasterers (1909) 1 KB 310 'Knight v. Lee (1893) 1 Q B 41; 'Wright v. Green-royd (1881) 1 BS 758; 'Jackson v. Woolley (1858) 8 EB 778; 'Williams v. Smith'. (1859) 4 LLN 559, 'Waugh v. Middleton(1853) 8 Ex 352; 'Larpent v. Bibbey (1855) 5 H L Cas 481; 'National Real Estate Finance Co. v. Hassan (1939) 2 K B 61. 6. There is at least one exception to the general principle that no statute shall be construed to have a retrospective operation and that is that statute which affect only the procedure and pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge or Judges who are exercising for the time being the function of the High Court in respect of an appeal of that particular kind or value. He is not concerned with the internal arrangements of the High Court and so long as his appeal is heard by the appropriate Bench, that is, the Bench which is competent to hear the appeal in accordance with the rules framed by the High Court, he can have no legitimate grievance. As the power to make rules carries with it the corresponding power to vary or amend the rules, the High Court has full power to alter or amend the rules made by itself and to provide that certain types of appeals which were being heard and disposed of by a Bench of two Judges should in future be heard and disposed of by a Judge sitting alone. These rules affect only the practice and procedure of the Court and can be made or unmade at the will and pleasure of the rule-making authority 'Har Prasad v. Lala Bool ChandMANU/UP/0009/1936MANU/UP/0009/1936 : ILR (1937) All 191 'Sadar Ali v. Doliuddin Ostagar 56 Cal 512; 'In re Vasudeva Samiar 52 Mad 361. 8. If alternations in rules or procedure are retrospective and if a rule that a particular type of appeal should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interposition to redress the error of the Court below . Although the law as we understand it considers it essential that a litigant who is aggrieved by the order of one Court should be at liberty to have his case examined by a superior tribunal, it is somewhat of a paradox that appeals from one Court to another on the ground that the lower Court has given a decision erroneous in point of fact or law were entirely unknown to the common law of England. The right of appeal is not a natural or an inherent right which is available to every litigant as a matter of course; it is merely a legislative privilege which the law-making authority may confer or withholds as it may think fit. Subject to the provisions of the Constitution the Legislature possesses full powers to grant or take away the right of appeal and to prescribe in what cases, under what circumstances, in what manner and to and from what Court appeals may be taken. It is for this reason that appeals are commonly regarded as creatures of statute. The right of appeal has always been regarded as a valuable and substantial right and it has been held repeatedly that a provision of law which confers, extends or regulates the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. As statutory rules are regulated by the same rules of construction as are applicable to statutes it is obvious that a right of appeal conferred by a statute cannot be taken away by a rule of procedure by the High Court particularly if, as in the present case, the amended rule is not retrospective in its operation. 11. Now, what exactly were the vested rights of a litigant who brought a suit on or before the 8th May 1951 to prefer an appeal to the Supreme Court? These rights are embodied in Sections 109 and 110 of the Civil P. C. and in Article 134 of the Constitution. Section 109 declares that an appeal shall lie to the Supreme Court in cases mentioned in Clauses (a) to (c) of the said section provided that in each of the cases mentioned in Clauses (a) and (b) the conditions set out in Section 110 are complied with. Article 133(4) declares that no appeal shall lie to the Supreme Court from the decree or order of one Judge of a High Court. A perusal of these provisions makes it quite clear that a litigant had a right to prefer an appeal to the Supreme Court if he satisfied the conditions of Sections 109 and/or 110 and if the order sought to be appealed from was not passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights conferred by Clause (c) can be taken away, appear to me to be misconceived. Section 109 draws no distinction whatsoever between appeals which can be preferred under any of the three clauses of the said section for it provides that an appeal shall lie to the Supreme Court; (a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction; and (c) from any decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council. 14. Leave to appeal to the Supreme Court can be granted either when the case fulfils the requirements of Section 110 or when it is 'otherwise' a fit-case for appeal to the Supreme Court. In either case the petitioner has to apply for a certificate either that the case fulfils the requirements of Section 110 and is therefore a fit case for appeal to the Supreme Court, or that for other reasons it is a fit case for appeal to the Supreme Court. Ordinarily it is not difficult to satisfy the Court that the case fulfils the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys for the purpose of giving effect to the will of the Legislature, or, in other words to the will of the law. 16. It will thus be seen that when the High Court is called upon to decide whether the amount or value of the subject-matter of the suit or appeal is above the limits prescribed by Section 110 or whether a substantial question of law has arisen or whether the case is a fit one for appeal to the Supreme Court, the High Court exercises discretion in the sense of being discreet, circumspect and prudent and exercising the best of its judgment. Decisions of eminent Judges have indicated the grooves in which discretion should run and this Court and all other Courts are supposed to ascertain the principles of law and to follow them. Justice is administered in the Courts on fixed and settled principles and does not vary like the Chancellor's foot . It seems to me, therefore, that as much discretion is involved in deciding that the case is a fit one for appeal to the Supreme Court as in deciding that the appeal involves the decision of a substantial point of law. Rules and analogies of law are as relevant in the decision of the first question as they are in the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to exclude from any right of appeal cases which fall within the requirements of Section 110 of the Code and are operative to confine that right to cases which are certified to be otherwise fit for appeal to His Majesty in Council. It was conceded in arguments that if Sub-section (2) of the section had stood alone it would be difficult to escape from the construction of it which has just been indicated. It was contended, however, that the reference to the Code in Sub-section (3) was made in terms sufficiently comprehensive to include within the class of appealable cases all that are defined in the provisions incorporated by reference. Their Lordships again agree with this contention that the words of qualification so far as may be in Sub-section (3) are, in their judgment, apt to confine the 'statutory right of appeal' to the cases described in Sub-section (2). To this extent, therefore, their Lordships are in agreement with the High Court. If Sub-section (2) of Section 66 of the Income Tax Act confers a statutory right of appeal, I can see no reason for holding that a similar right is not conferred by Clause (c) of Section 109, the language of which is identicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties to the litigation as soon as the action is brought, that even though an application has to be made to the High Court for permission to prefer an appeal to the Supreme Court Sections 109 and 110 of the Civil Procedure Code confer a right of appeal as a matter of right in the cases mentioned and under the conditions prescribed in the statute, that a person who complies with the statutory conditions is entitled as of right to claim that his application for leave to appeal should be granted, that in such a case the Court has no discretion to reject the application for leave to appeal, that authoritative pronouncements made by the highest tribunals show that Clause (c) of Section 109 confers a statutory right of appeal, that the distinction between an appeal as of right and an appeal in the discretion of the High Court is illusory as far as the provisions of Section 109 are concerned, that the Court has as much discretion to say that the appeal involves the decision of a substantial question of law as to say that the case is a fit one for appeal to the Supreme Court, that if a right to prefer an appeal is curtailed or so unreasonably encumbered as to render it useless or imp ..... 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