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Judgment
Govinda Pillai, J.—Defendants 1 and 3 to 7 are the Appellants. Defendants 2 and 3 are the sisters of Defendant 1. Plaintiffs 1 to 6 are the children of Defendant 2 and Defendants 4 to 7 are the children of Defendant 3. In the undivided branch of Defendants 1 to 3, it was alleged, that Defendant 1 was the ''Karnavan'', that the ''tarwad'' possessed of A schedule properties, that the same belonged absolutely to the branch of Defendants 1 to 3, that some properties had been allotted for the maintenance of that branch from the main ''tarwad'', that these were described in the B schedule attached to the plaint, that the C schedule items were movables belonging to that branch, and that all these were under the control and management of the ''Karnavan'', Defendant 1.
On 7-1-1110, Defendant 1 brought into existence a partition deed Ext. A regarding A to C schedule properties. Besides Defendant 1, the two other adult members of the branch were Defendants 2 and 3 who were illiterate ladies. All the properties of the branch had not been included in the suit. There was no fair partition, and 2nd Defendant''s branch did not get the legitimate share to which it was entitled. The movables find the gold ornaments were not divided on a proper and just basis. Thus, the Plaintiff and Defendants 2 and 3 had not obtained their due and legitimate share under Ext A partition deed. The suit was to set aside the same.
The 2nd Defendant had filed O.S. 6 of 1113 on the file of the District Court, Alleppy, to set aside this partition deed. But it was withdrawn by her on 1st Defendant''s assurance that a fresh partition deed would be executed. But nothing was done thereafter. On the other hand, he had executed in favour of Defendant 8, a ''chitty'' hypothecation bond, charging some of the plaint properties. This document was not binding on the Plaintiffs. There were on the date of the suit 13 members in the branch and the Plaintiffs wanted to have Ext. A set aside and to get the properties re-allotted, so that they might get 6/13 shares in the properties. Defendants 1 and 2 alone contested the suit. The 2nd Defendant supported the Plaintiffs.
The 1st Defendant contended that the branch ''tarwad'' remained undivided till Ext. A partition deed, that the C schedule properties did not belong to that branch, that though he was the ''de jure'' ''karnavan'' at the time of Ext. A, Defendant 2 and her husband who has now come forward as the next friend of the minor Plaintiffs 1 to 6 were attending to the affairs of the ''tarwad'', that they were conversant with the details of the properties belonging to that branch, that Ext. A was a proper and fair allotment of the properties, that the suit was barred by reason of the decision in O.S. 6 of 1113 mentioned in the plaint, and that the Plaintiffs were not entitled to get a reallotment as prayed for by them.
The Court below held that the Plaintiffs were competent to impeach Ext. A partition deed, that the decree in O.S. 6 of 1113 was no bar to the present suit, as the same was withdrawn on a compromise petition, though the allotment was not fair, that the allegation of fraud had not been made out in the case, that Ext. A indicated that it had been demonstrably to the prejudice of the minor Plaintiffs, that'' the Plaintiffs could not get 6/13 share, for at the time of Ext. A, four of the minor Plaintiffs alone existed, that they could therefore reopen the partition deed only to the extent of their share which came to 4/8, that there were no properties mentioned in the C schedule and that Ext. A was to be set aside to the extent of the Plaintiffs'' 4/8 share in respect of A and B schedule properties. A preliminary decree was passed in these terms.
Defendants 3 to 7 have joined hands with Defendant 1 and preferred this appeal against the decree passed in favour of the Plaintiffs. This appeal was valued at 31560 ''fanams''. The Plaintiffs had filed a cross-appeal claiming the share of their mother - Defendant 2 - also in the suit. This cross-appeal was valued at 3945 ''fanams''. Thus the value of the appeal and cross-appeal came to over 35,000 ''fanams'' and under the Travancore High Court Act which was in force at the time when this appeal was filed, it was to be heard by a Full Bench of not less than three Judges. When this appeal was heard by us on 6-3-1952, the Travancore-Cochin High Court Act I of 1952 had been passed. By this amendment, the provision for hearing appeals of the value of Rs. 5000/- and above, as mentioned in Section 25, High Court Act, of 1125, had been deleted.
The Respondents learned Advocate therefore raised a preliminary objection that we had no jurisdiction to hear this appeal as the rights of the parties to have the appeal heard and decided by a Full Bench of not less than three Judges was a vested one, and that such right could not be taken away by a later legislation which had no retrospective effect or at any rate which purported to have no retrospective effect. The Appellants'' learned Advocate further stated that the Act I of 1952 was not assented to by His Highness the Rajpramukh, and that therefore it could not be deemed to be a valid act of legislation. We shall record our decision on this preliminary point before we proceed to consider the appeal on the merits.
Entry 78 in List I (Union List) in Schedule 7 to the Constitution of India reserved.
Constitution and organisation of the High Courts except provisions as to officers and servants of High Court; persons entitled to practise before the High Courts.
for legislation by the Parliament. The State Legislatures could pass the necessary law regarding other matters. (Vide Entry No. 3 in the State List and No. 13 in the Concurrent List). There can therefore be no doubt that the State Legislature can legislate the procedure to be followed in the High Court as to the filing and disposal of appeals etc., there. The present Act I of 1952 amending the Travancore-Cochin High Court Act of 1125, to make provision for regulating the business in the High Court, is within the competency of the State Legislature.
Under Article 200 of the Constitution of India, when a Bill has been passed by the State Legislature, it shall, be presented to the Rajpramukh and the latter shall declare that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. When a Bill is reserved for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom. Act I of 1952 was published in the gazette (supplement) of 22-1-1952 with the notification that the Act of the Travancore-Cochin Legislature had received the assent of the President on 8-1-1952. This is published with a notification to that effect issued by the order of His Highness the Rajpramukh when assent to the Act was given by the President (vide Article. 255). The notification issued by the order of His Highness the Rajpramukh shows that the Bill in question had been reserved for the assent by the President, and this implies the declaration contemplated in Article 200. The Act was therefore valid.
As to the question whether appeals which were provided for being heard by a Bench of not less than three Judges could be heard by a lessor number of Judges, there is no doubt that a right of appeal provided for by the CPC is a vested right that could not be defeated by a subsequent legislation. The rulings in - ''Colonial Sugar Refining ''Co. Ltd. v. Irving'' (1905) A.C. 369, - ''Kirpa Singh v. Rasalldar Ajaipal Singh'' AIR 1928 Lah 627 (FB) and - ''Suryanarayanan v. Ratanlal'' AIR 1952 Hyd 34 are authorities for this position. But except in urging that an appeal filed in the High Court under the provisions of the CPC should be heard and decided by the High Court, no litigant has a vested right to compel that it should be heard by a particular number of Judges.
The Judges exercise the powers conferred by the Statute and when the new provision is that a matter attended to by three Judges can be disposed of by two Judges, it is only one affecting the procedure to be followed in the High Court. Such procedural law will apply to all proceedings pending in the High Court. This question had come up for consideration before the Chief Court of Cochin in - ''Simon v. Varki'' 14 CLR 6 and it was held that while it is well settled that a right of appeal was a vested right, and that in the absence of express words an enactment will not be so construed as to take away a right of appeal, a party cannot be held to have a substantial right to have his case heard by a particular number of Judges. We respectfully adopt this view.
7a. There is a Full Bench ruling of the Punjab High Court reported at page 103 of AIR 1952 P&H 103 (- ''Gordhan Das Beldev Das v. Governor General-in-Council'',) which held that a provision of law which deprives a litigant of his right of appeal to a superior tribunal cannot be regarded as a provision which affects only the procedure and practise of the Court and that the amendment of the High Court Rules and Orders which provided that certain appeals which were heard by a Bench of two Judges should in future be heard by a single Judge sitting alone takes away the vested right of appeal to the Supreme Court and can, therefore, be deemed to operate only in respect of appeals which arise out of suits instituted after the rule was amended. Under Article 133(1) of the Constitution,'' an appeal under certain restricted conditions would lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court; but Article 133(4) prohibited appeals to the Supreme Court from the judgment, decree or final orders of one Judge of a High Court.
It was, therefore, stated that the amendment enabling a single Judge to hear and dispose of appeals which were being heard by two Judges took away the right of the defeated party to prefer an appeal to the Supreme Court and that, therefore, the amendment could not have retrospective effect to affect pending appeals. The amendment does not really take away or restrict the vested right. It appears to me that the right has only been enlarged. An appeal against the decision of a single Judge is provided for, in case the Judge certifies that the case is a fit one for appeal. So if it is a fit case, a Division Bench of two Judges can hear the appeal, and then the aggrieved party can take up the matter in proper case to the Supreme Court. Thus in fit cases, instead of one appeal two appeals are provided for.
Bhandari J. in the said case was of the view that by adopting this procedure, a hurdle is placed fettering the rights of the litigant. Even if the appeal is decided by a Bench, the defeated party could not straightway prefer an appeal before the Supreme Court. He has to satisfy the conditions laid down in Article 133(1). The hurdle is always there and it can be got over only if there is a fit case for appeal before a Division Bench or the Supreme Court. The rule referred to in the Punjab Case corresponds to the amendments in Act I of 1952 granting powers to single Judges to hear appeals of a particular type. But this has no application to cases decided by a Bench of two or three Judges. Whether the decision was by two or more Judges, the party aggrieved had to satisfy the conditions laid down in Article 133(1) of the Constitution to enable him to prefer the appeal to the Supreme Court. This ruling, however, has no application to appeals which were being heard by three or more Judges before, and which are now being posted for disposal before a Bench of two Judges.
In the Civil Court Act, 22 of 1951, a change as to right of direct appeal from the Munsiffs'' and Sub-Judges'' Courts to the High Court was made. The appeals from suits in the Munsiffs'' Courts in the Travancore area, the value of which was above Rs. 1000 were allowed to be filed in the High Court. This is now modified, and such appeals are to be filed in the District Court. But special provisions have been made in Section 30(1) that such appeals pending disposal in the High Court on the day the said Act came into force should be heard and disposed of by the High Court. There is no corresponding provision in Act I of 1952, though Act 22 of 1951 and Act 1 of 1952 were passed by the Legislature at its same sitting. We are, therefore, of the view that the preliminary objection has no force, and we overrule the same.
The only ground on which Ext. A was set aside by the learned Judge was that it was demonstrably to the prejudice of the minor Plaintiffs. In coming to this conclusion, the learned Judge had referred to Ext. D report of the Commissioner who was sent to assess the market value of A and B Schedule properties. The judgment does not show that he had scrutinised the report. The plaint schedule consists of two categories of properties. A Schedule contained properties which belonged absolutely to the branch of the Plaintiffs and Defendants 1 to 7. The B schedule consisted of properties which that branch obtained for purposes of maintenance from the main branch in 1101 under Ext. B. Since B Schedule properties were being enjoyed by the branch for a limited purpose the Plaintiffs could not ask for an absolute division of those properties. Their rights would be to claim maintenance from Defendant 1 on the basis of the yield from the B Schedule properties. The present suit, therefore, for partition of B Schedule properties was ''prima facie'' incompetent.
The conclusion came to by the lower Court that Defendant 1 had taken under Ext. A more properties than that legitimately due to him was based on the allotment of B Schedule properties as well. Leaving alone these B Schedule properties, we have to see whether Ext. A partition deed was demonstrably to the prejudice of the minor Plaintiffs. We had recourse to the figures shown by the Commissioner in Ext. D report. It has to be mentioned that the valuation given by the Commissioner in Ext. D could only be approximate, and that the value of the properties given there could be taken into account only to see whether the allotment was demonstrably to the prejudice of the Plaintiffs. The report was filed in 1118 when the price of properties particularly of paddy lands was going up. The partition deed Ext. A was in 1110, and it may not be quite safe to place too much reliance on the valuation given in Ext. D. Even from this valuation, it can be seen that the Plaintiffs were not in any way prejudiced in regard to the allotment of A Schedule properties.
The learned Advocate for the Respondents had filed before us a statement showing the value of the properties allotted to the different sharers under Ext. A. It contains several mistakes. We compared the figures given in Ext. D and this statement with reference to the plaint schedule properties. It was found that the value of the garden lands including the buildings allotted to the Plaintiffs'' branch came to Rs. 6174/- and paddy lands to Rs. 12,805. Similarly, the value of 1st Defendant''s share in the garden lands was Rs. 2306 and the paddy lands Rs. 3570. The value of 3rd Defendant''s branch in the garden lands was Rs. 4295 and paddy lands Rs. 6825. Thus the total value of garden lands came to Rs. 12,775 and paddy lands to Rs. 23,200/-. There were eight members in the ''tarwad'' at the time of Ext. A partition, so that the value of each share of a member would come to Rs. 1597 on account of garden lands and Rs. 2900 for the paddy lands. The five shares to which the Plaintiffs'' branch was entitled could, therefore, be valued at Rs. 7985 for the garden lands and Rs. 14,500 for the paddy lands, that is, properties to the value of Rs. 22,485.
According to Ext. D, they got the properties to the value of Rs. 18,979. It has also to be mentioned that under Ext. A, 3rd Defendant''s, branch was to give the Plaintiffs'' branch every year 66 ''paras'' of paddy out of the yield from the properties allotted to that branch. Ext. A mentioned that the properties which that branch, was able to divide were those obtained on partition from the main ''tarwad'', those got by Defendant 1 on a gift from a prior ''Karnavan'', and those acquired by Defendant 1 by his exertion. It is only natural that a ''Karnavan'' of a ''tarwad'' is given a little more than what is normally due to him. In this case due allowance has to be given for the difference in the price of the properties. The estimate given, above is, besides, only an approximate value.
It cannot be said that the distribution of A Schedule properties to the several sharers was prejudicial to the interests of the minors-Viewing from Anr. stand point, the Plaintiffs could not get a re-allotment of the properties. The total value of the properties according to Ext. D comes to about Rs. 35,975. In the plaint, the Plaintiffs claimed 6/13 shares, out of this. Reckoning one share for the mother - Defendant 2 - their branch will get 7/13 share of the properties worth about Rs. 19,371. Ext. B would show that they had already obtained properties worth not less than Rs. 19,000/-. It is, therefore, not possible to make out a case of prejudice so far as the minors'' interests are concerned. The calculations made are only approximate.
A.S. 658 of 1121 is connected with this appeal. That suit was filed by Defendant 2 in A. S. 596 of 1120 against Defendant 3 for realising the 66 ''Paras'' of paddy agreed to be paid to 2nd Defendant''s branch in Ext. A. Thus we see that the mother accepts Ext. A and tries to enforce it; whereas all her minor children in claiming their share want to set aside Ext. A, even ignoring the share to which Defendant 2 will be entitled. The Plaintiffs have failed to show that the distribution of the plaint A schedule properties is in any way unfair or prejudicial to their interest. Thus the Plaintiffs'' suit as regards A Schedule properties has to be dismissed.
In regard to the B Schedule properties, it was already mentioned that the Plaintiffs could not claim an outright partition of the same. They can claim only maintenance from the ''Karnavan'' - Defendant 1 - and it is open to them to claim a re-adjustment of their rights due to the changed circumstances. The Plaintiffs have to enforce that right by a separate suit. The decision in this case will not in any way prejudice them. They are, if so advised, directed to file a separate suit regarding their rights to the B Schedule properties.
Subject to these directions we hold that the Plaintiffs have not made out a case for setting aside Ext. A. In reversal, therefore, of the decree of the Court below, this appeal is allowed, but in view of the close relationship between the parties, we do not think it necessary to allow Defendant 1 his costs in both the Courts. We, therefore, direct the parties to bear their costs throughout. The cross appeal is dismissed.
Koshi, C.J.
I have had the advantage of reading the judgment my learned brother Govinda Pillai J. proposes to deliver in this, case and I agree with his conclusion as to how the appeal should be disposed of. The preliminary objections raised at the Bar were then and there overruled and we stated that our reasons therefore will be sat out in the appeal judgment. As this is the first ox a series of appeals in which these objections have been raised I think it proper to add a few words of my own regarding them.
Counsel Appearing for the parties were agreed in questioning our competence to hear and dispose of the appeal, but we had the benefit of the learned Advocate General''s arguments for the opposite view. We express our indebtedness to him for the ready assistance he gave us at our request.
Mr. Kayalam Parameswaran Pillai, who appeared for the Appellants, contended that Act 1 of 1952 was invalid in that it did not ''ex facie'' show that the Bill to amend the Travancore-Cochin High Court Act, 1125, was presented to His Higness the Rajpramukh after it was passed by the Legislative Assembly or that His Highness the Rajpramukh had made a declaration reserving the Bill for the consideration of the President. Reference was in this connection made to Article 200 of the Constitution.
Mr. N. Varadaraja Iyengar, the learned Counsel for the Respondents who joined hands with the Appellant''s counsel in contending that Act I of 1952 cannot have any retrospective operation, was not, however, prepared to agree with Mr. Parameswaran Pillai about the invalidity of the Act Section 114 of the Evidence Act enacts:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (e) to the section states that the Court may presume that judicial and official acts have been regularly performed. This is a particular application of the maxim "''omnia praesumuntur rite esse acta''" i.e., all acts are presumed to have been rightly and regularly done. Unless, therefore, the contrary is established the Court has to presume that the impugned Act has been validly enacted and that all the necessary formalities for its enactment have been duly complied with. Apart from this, there is the added fact that the promulgation of the Act is heralded by a notification issued "By order of His Highness the Rajpramukh" published in the Official Gazette. That notification reads as follows:
The following Act of the Travancore-Cochin Legislature received the assent of the President on the 8th January 1952 and is hereby published for general information.
It is in these circumstances idle to contend that the Act is invalid and I unhesitatingly repel it.
The more serious objection is the contention that the Act cannot have any retrospective operation. According to Counsel appearing on either side appeals falling u/s 25, Travancore-Cochin High Court Act, 1125, that were pending when the amending Act came into force and appeals that hereafter arise from suits instituted before the enactment of the amending Act have to be heard and disposed of as heretofore, that is by a Full Bench of not less than three Judges. It is a well established rule of construction of statutes that in general when the law is altered during the pendency of an action the substantive rights of the parties remain uninfected and are decided according to the law as it stood when the action was commenced, unless the new amendment is made retrospective either expressly or impliedly. It is equally well settled that if the statute merely deals with procedure and does not affect the substantive rights of the parties it is held to apply ''prima facie'' to all actions pending as well as future. In - AIR 1927 242 (Privy Council) Lord Blanesburgh in pronouncing the judgment of the Judicial Committee said:
The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the - ''Colonial Sugar Refining'' Co. v. Irving'' (1905) AC 369, 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.
So long ago as 1889 Wilson, J. (Sir Arthur) had enunciated the same principle in a judgment pronounced by him on behalf of a Full Bench of five Judges of the Calcutta High Court. See - ''Deb Narain Dutt v. Narendra Krishna'' 16 Cal 267 (FB). At p. 272 of the report the learned Judge is seen to have observed that retrospective effect is not ordinarily given to an enactment so as to affect substantive rights but that provisions affecting mere procedure are applied to pending proceedings. In this context an extract from a decision of Sir'' John Edge. Kt., C.J. in - ''Fateh Chand v. Muhammad Bakush'' 16 All. 259 (FB) may be usefully quoted.
The learned Chief Justice pronounced the judgment on behalf of a Bench of six Judges and the question there was whether Act VII of 1889 enacted after the institution of that suit could be made to apply to it. Section 4 of Act, 7 of 1889, enjoined that no decree could be passed in favour of the legal representatives of a deceased Plaintiff unless a Probate, Letters of Administration or a succession certificate was produced. One of the Plaintiffs in that case had died pending the suit and in holding that the Act applied to the pending proceeding Sir John Edge, C.J. stated as follows at pp. 264 and 265 of the report:
There was much confusion in the argument in this case between the right of action and a right to have an action conducted in a particular way. The former is a vested right, the latter is merely a question of procedure in which no litigant or intending litigant has any vested right whatever. It is competent to the Legislature by enactment to deprive a subject of a vested right of action, but the intention to do so must be clearly and unmistakably expressed in the Statute or Act. No right of action vested or otherwise was intended to be or was taken away, or in any respect modified, altered or interfered with, by the repeal of Section 2 of Act No. 27 of 1860.
In - ''Republic of Costa Rica v. Erlanger'' (1876) 8 CD 62 at p. 69 Mellish, L.J., held that "no one has any vested interest in the course of procedure". In - ''Warner v. Murdoch'' (1877) 4 CD 750 at p. 752 James, L.J., held that "no one has a vested right in any particular form of procedure". In -''Wright v. Hale'' (1860) 6 H&N 227 Pollock, C.B., said: "There is a considerable difference between new enactments which affect vested rights and those which merely affect the procedure in Courts of Justice, such as those relating to the service of proceedings, or what evidence must be produced to prove particular facts".
Later on that learned Judge said: "When an Act alters the proceedings which are to prevail in the administration of justice and there is no provision that it shall not apply to suits then pending, I think it does apply to such action." In the same case Channell, B., said: "In dealing with Acts of Parliament which have the effect of taking away rights of action, we ought not to construe them as having a retrospective operation, unless it appears clearly that such was the intention of the Legislature; but the case is different where the Act merely regulates practice and procedure".
In the same case Wilde, B., said - "I am prepared to decide this case upon principle. The rule applicable to cases of this sort is that when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act. That this is the true principle sufficiently appears from the cases that have been referred to on both sides".
Such we also believe to be the true principle, and that is the principle which was recognised and acted upon by a Full Bench of this Court (Stuart C.J., dissenting) in - ''Ganga Sahai v. Kishan Sahai'' 6 All. 262 (FB).
Such alteration as was made in the law by Section 4 of Act 7 of 1889 was an alteration in procedure only not affecting any vested right of action; and, in our opinion, the procedure provided by that section applied in this case as soon as Act 7 of 1889 came into force.
The answer to the question on hand must, therefore, depend upon whether the provision in Section 25, Travancore-Cochin High Court Act, 1125, now repealed, gave the litigant any vested right or whether it enacted only a rule of procedure. The right of a disappointed suitor to prefer an appeal to a superior Court has always been considered to be a vested right. The leading case on the subject is '' (1905) AC 369 '' relied upon in AIR 1927 242 (Privy Council) In that case Lord Macnaghten said that 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. This case has since been followed in India by several High Courts. The decisions in - Sadar Ali and Others Vs. Doliluddin Ostagar, ; - Ram Singha and Another Vs. Shankar Dayal and Another ; - ''Kripa Singh v. Rasalidar Ajaipal Singh'' AIR 1928 Lah. 627 (FB); - ''Vasudeva Samiar, In Re: Vasudeva Samiar alias Vasudeva Pillai, and '' Bhagawantrao Anandrao v. Damodar Govindrao'' AIR 1938 Nag 112 may be referred to as instances.
The deletion of Section 25, Travancore-Cochin High Court Act, 1125, does not, however, directly or indirectly affect any right of appeal a party to a pending litigation had when the amending Act came into force. Section 76, Travancore CPC (corresponding to Section 96 of Act 5 of 1908) provides ''inter alia'' that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Courts authorised to hear appeals from the decisions of such Courts. The Travancore Civil Courts Act, 2 of 1084, was the relevant legislation when the suit and the present appeal were instituted. Section 16 thereof so far as relevant stated that appeals from original or appellate decrees or orders of a District Court shall, when such appeals are allowed by law lie to the High Court.
Section 11, Travancore High Court Act, 5 of 1099, enacted that a Full Bench shall hear and decide all appeals from the decrees of the District Courts in which the amount or value of the subject-matter is not less than Rs. 5000/- and the amount or value of the matter in appeal is not less than that sum. When the two States of Travancore and Cochin were integrated this provision was incorporated into the Travancore-Cochin High Court Ordinance and it also found its place in the subsequent Act, the Travancore-Cochin High Court Act, 1125, in Section 25 thereof. The amending Act whose operation is now under consideration deleted the provision. As stated earlier the question for decision is whether that deletion affected any vested right or introduced only a change in the procedure relating to the hearing and disposal of a particular class of appeals.
Reference made to the provisions in the CPC and the Civil Courts Act showed that while the provision in the former gave a right of appeal to a party aggrieved by a decision in an original suit, the forum where the appeal should be instituted was prescribed by the Civil Courts Act. The right of a disappointed suitor to prefer an appeal against a decree of the District Court is to prefer an appeal to the High Court. Section 6, Travancore High Court Act, enacted ''inter alia'' that the High Court may exercise all the powers vested in it by that Act and by any other Act then in force or which may thereafter be passed. The succeeding sections deal with the powers of a Single Judge of Division Benches and of Full Benches.
To my mind it looks fairly clear that the provisions of the High Court Act prescribing the powers of Single Judges, Division Benches and Full Benches are only matters affecting procedure or the conduct of the business, in the High Court. The same is the case with the corresponding provisions of the Travancore-Cochin High Court Act, 1125. The right of appeal is conferred by the CPC while the Civil Courts Act prescribes the forum. The High Court Act regulates the procedure as to the hearing and disposal of appeals that are filed in the High Court.
To my knowledge no Court has said that a suitor has a vested right to have his appeal and disposed of by a particular number of Judges. Reference can be made to several decisions which take the view that there is no such vested right.
My learned brother has referred to a decision of the Cochin Chief Court reported as - ''Simon v. Varki'' 14 CLR 6. An attempt was made at the Bar to show that the law or notification in question there was on the face of it retrospective and that the statement of Varugis, J. (as he then was) in his judgment that a party cannot be held to have a substantial right to have his case heard by a particular number of Judges was mere ''obiter dicta''. No doubt the "other learned Judge had based his decision on the fact that the impugned notification was ''ex facie'' retrospective. The references made in the judgment of Sir John Edge, C.J. in - ''Fateh Chand v. Muhammad Bakhsh'' 16 All 259 (FB) and the authorities to be referred to presently will show that the Opinion Varugis, J. expressed is plainly sound.
Before referring to decided cases an extract relevant to the context may be reproduced here from Maxwell on Interpretation of Statutes. In Edition 9 of that book at page 232 is seen stated as follows:
That the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties. Although to make a law punish that which, at me time when it was done, was not punishable, is contrary to sound principle, a law which merely alters the procedure may, with perfect propriety be made applicable to past as well as future transactions, and no secondary meaning is to be sought for an enactment of such a kind. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode.
The authorities relied upon for the principle embodied in the above extract are - ''Republic of Costa Rica v. Erlanger'' (1876) 3 CD 62; - ''Wright v. Hale'' (1860) 6 H&N 227; -''Warner v. Murdoch'' (1877) 4 CD 750 and -''Attorney General v. Sillem'' (1864) 10 HLC 704 : 11 E.R. 1200. Relevant extracts from the first three of these above four cases are found in the quotation made earlier from the judgment of Sir John Edge, C.J. in - ''Fateh Chand v. Muhammad Bakhsh'' 16 All. 259 (FB). In the fourth case - ''Attorney General v. Sillem'' (1864) 10 H. L.C 704 at p. 764 : 11 E.R. 1200 at p. 1225 the following instructive passage occurs in the judgment of Lord Wansley-dale:
The right of the suitor is to bring the action, and to have it conducted in the way and according to the practice of the Court, in which he brings it; and if any Act of Parliament or any rule founded on the authority of the Act of Parliament, alters the mode of procedure, then he has a right to have it conducted in that altered mode. That, therefore, takes away nothing. The right of action does not constitute a title to keep all the consequences of the right as they were before. It gives the right to have the action conducted according to the rules then in force with respect to procedure.
The principle enunciated in these old English cases has been adopted in large many Indian decisions. The first case I would refer in this connection is - Har Prasad and Another Vs. Lala Bool Chand, This is a decision of Sulaiman, C.J., and Allsop, J. and as that case is on all fours with the present I take the liberty to quote here the full text of the order:
The question referred to this Bench is whether the Appellant can claim as of right that this appeal should be heard by a Bench of two Judges of this Court. The valuation of the appeal is Rs. 1,200 and at the time when it was filed it was cognizable by two Judges under the rules made by this Court. Recently the pecuniary jurisdiction of a Single Judge has been raised up to Rupees 2,000 and the appeal is now cognizable by a Single Judge. The learned Counsel for both the parties urge before us that there was a substantive right vested in the Appellant to have the appeal heard by a Bench of two Judges only and not by a Single Judge.
No doubt it is well-established that the right of appeal is a substantive right and any rule taking away the right of appeal cannot have a retrospective effect so as to destroy that right. But u/s 100, Code of Civil Procedure, the Appellant had a right of appeal to the High Court from the decree passed in appeal by the Subordinate Judge on the grounds mentioned therein. The right was to appeal to the High Court and not to any particular Bench of this Court. u/s 108(1), Government of India Act, this High Court has made its own rules providing for the exercise of its appellate jurisdiction by one or more Judges or by Division Courts constituted of two or more Judges.
This rule is exclusively for regulating the procedure in this Court as regards the constitution of Benches. We are unable to hold that the Appellant has any vested right in such a constitution. If by an amendment'' of the rules the constitution of the Benches is altered the appeal still lies to the High Court and the Appellant cannot claim that the appeal must be heard by a Bench as constituted before the rule was amended. We accordingly hold that the appeal was cognizable by a Single Judge of this Court.
There the change affected related to the hearing of second appeals. Here it is a regular appeal that we are concerned with. The principle applicable is, however, the same.
I shall now refer to a batch of cases which arose out of the amendment to the Letters Patent of the High Courts or of the rules High Courts had framed by virtue of the provisions of the Letters Patent or of the Government of India Acts. The changes introduced were all similar and they took away the right of an unsuccessful suitor in a second appeal to prefer an appeal as of right to a Bench of the High Court which was the rule before the amendments. The amendments provided that there shall be no appeal unless the Judge disposing of the second appeal declared that the case was a fit one for further appeal. It was contended in those cases that the amendments affected the vested right of appeal and were not, therefore, retrospective in their operation.
Divergent views have been taken on the question by different High Courts. Those decisions have no direct bearing for the present controversy and for my part I consider it more proper to deal with that question if and when it is raised before this Court that the amendment introduced by Act, 1 of 1952, investing a Single Judge with power to dispose of second appeals whose valuation is Rs. 1000/- or less cannot have retrospective operation. It is, however, interesting to notice that all the decisions I propose to refer contain observations which are, uniformly in support of the view I take here 1 on the preliminary point now under consideration that a party cannot be held to have a vested right to have his case heard by a particular number of Judges.
The first case I would refer to here is - Sadar Ali and Others Vs. Doliluddin Ostagar, which has already been referred to in Anr. connection. In that case at page Sir George Rankin, C.J., who was presiding over a Full Bench of five Judges is seen to have made the following observations:
Again as the right of second appeal is the right given by Section 100, Code of Civil Procedure, to appeal "to the High Court" it does not seem unreasonable that a litigant should take the internal arrangement 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 before two Judges and a new Letters Patent had provided that one Judge should be competent to exercise this jurisdiction, leaving the right of appeal to the High Court and from the High Court as before, it would have been difficult, in my opinion, to that any litigant had a right to a hearing before two Judges.
Again it is difficult to suppose 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 Anr. for this purpose. It may also be thought difficult to arrive at any opinion that the reform introduced is reasonable and necessary, but that it should in effect be postponed for years.
Here the case related to the amendment of the Letters Patent of the Calcutta High Court. Similar amendments elsewhere gave rise to similar cases, but it is unnecessary to refer to all of them here. ''Vasudeva Samiar In Re: Vasudeva Samiar alias Vasudeva Pillai, referred to earlier, is one of such cases.
In - ''Radhakishan v. Shridhar'' AIR 1950 Nag. 177 (FB) the Nagpur High Court was called: upon to decide whether the amendment of the rules which introduced the provision that a certificate of fitness from a Single Judge disposing of a second appeal was a necessary pre-requisite for a further appeal to a Bench was retrospective in its operation. The Full Bench held in favour of the retrospective operation. That apart, the observations in para 21 fully support the view I take here.
If no question of any vested right arose the amendment of the rules could not be objected to because all that the rules determine is the procedure to be followed. A party cannot be heard to say that his case should be heard by so many Judges any more than by such and such Judges. No litigant has a vested right in procedure and must take the rules in force as he finds them. In other words, the rules prescribing the number of Judges is really a matter of procedure and all changes in the procedure of the Court made even during the pendency of an action must be taken to apply to that action unless such changes and alterations touch a substantive right.
In the next paragraph the learned Judge (Hidayatullah, J.) quotes with approval the judgment of Sulaiman C.J. and Allsop, J. in - Har Prasad and Another Vs. Lala Bool Chand,
The next case I desire to refer is referred to by my learned brother in his judgment, I mean the recent Full Bench decision of the Punjab High Court reported in - ''Gordhan Das Baldev Das v. G.G. In-Council'' AIR 1952 P&H 103 (FB). In that case the Punjab High Court refused to follow - ''Radhakishan v. Shridhar'' AIR 1950 Nag. 177 (FB). As indicated earlier I do not here feel called upon to state which of the two rival views appeals to me as correct. That can more conveniently be done on a more appropriate occasion. The judgment in that case contains observations supporting the view I take regarding the retrospective character of the provision of Act, 1 of 1952, now under consideration. Paragraphs 6, 7 and 8 contain useful observations for our present purpose and I quote them here:
There is not at least one exception to the general principle that no statute shall be construed to have a retrospective operation and that is that statutes which affect only the procedure and practice of the Court, as distinguished from those affecting substantive and substantial rights, are valid even in their application to pending suits and appeals. Ordinarily, a suitor has no vested right in any course of procedure and he cannot claim that the rules which were in force at the time of the suit was brought should continue to apply until his suit is finally decided. He must prosecute or defend the suit in accordance With the procedure which has been prescribed by the law for the time being in force and if the law-making or the rulemaking authority chooses to alter the procedure and to make it applicable to pending proceedings he has no alternative but to allow his action to be regulated by the new procedure.
So long as the new rules are made in exercise of the powers conferred by law and so long as they do not affect or destroy vested rights, no litigant can come forward and say that his case should not be regulated by those rules. The general principle seems to be that alterations in procedure are retrospective, - ''James Gardner v. Edward A. Lucas'' (1873) 3 A.C. 582, unless they have the effect of disturbing or destroying vested rights. It has been held that even procedural changes cannot be carried to the point of destroying accrued rights.
Section 108, Government of India Act, 1915 and Clause 26 of the Letters Patent of the High Court of Lahore empower this Court by its own rules to provide that any function which is directed to be performed by this Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or Divisional Courts constituted by two or more Judges of this Court. It is thus within the competence of this Court to make a rule that certain appeals where the amount in controversy does not exceed a certain figure. should be heard and disposed of by a Judge sitting alone and that certain other appeals where the amount exceeds that figure should be heard and disposed of by a Bench of two or more Judges.
If, therefore, a rule of this Court provides that a certain type of second appeals shall be heard by a Judge sitting alone the Appellant cannot claim that it should be heard by two or more Judges any more than he can claim that it should be heard by a particular Judge. He has a right of appeal to the ''High Court'' and all that he can claim is that he should be heard by the High Court i.e., by a Judge 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 Sadar Ali v. Lala Bool Chand'' ILR (1937) All. 191; - ''Sadar Ali v. Doliuddin'' 56 Cal. 512(FB); - ''In re Vasudeva Samiar'' 52 Mad 361.
If alterations in rules or procedure are retrospective and if a rule that a particular type of appeal should be heard by a Judge sitting alone is a matter of appellate procedure it is obvious that, like all other rules of procedure, it would apply not only to appeals which are instituted after the date on which the rule comes into force, but also to appeals which were awaiting disposal on the said, date....
I have quoted thus at a length which may be called wearisome to show that on principle and on authorities the preliminary objection that a Division Court of two Judges is incompetent to hear and dispose of this appeal is devoid of merit. The provision in the Act enabling a Division Court of two Judges to hear appeals specified in Section 25, Travancore-Cochin High Court Act, 1125, now deleted, clearly has retrospective operation. The preliminary objection will, as stated at the hearing, stand overruled in this aspect as well.