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Judgment
(1) This is a petition to review the judgment dated 23-6-1960 of a Division Bench of this Court consisting of Rajamannar C. J., and myself. We
concurred with the Additional District Judge in his conclusion and found that the plaintiff''s claim was barred by res judicata and by limitation which
were the only two questions argued before us on his behalf. The plaintiff''s appeal was accordingly dismissed. He now seeks review on two
grounds, to wit (1) that the Division Bench had no jurisdiction to decide the appeal and (2) that the counsel, who appeared for the appellant in
spite of definite written instructions from his senior counsel in the trial court to argue a certain point, totally failed to do so. The learned Chief Justice
having since retired, the petition comes before me sitting alone for disposal under Order 47, Rule 5 of the C. P. Code.
(2) The appeal, arising as it did, from Kanyakumari district was, in the wake of its merger with this State under the provisions of the States
Reorganisation Act, 1956, transferred from the High Court of Travancore-Cochin to this court under S. 60 of that Act. While the appeal was still
on the file of the High Court of Travancore Cochin it came before a Division Bench of that court was after hearing referred to a Full Bench by an
order dated 20th March 1956 on account of the existence, in its opinion, of a conflict of opinion among the High Courts in India on the point as to
whether a question relating to the delivery of possession of property sold in court auction between the decree-holder auction purchaser on the one
hand and a party to the suit or his representative on the other falls within the purview of S. 47 C.P.C. That Division Bench also observed that the
other questions of law raised in the appeal, namely, res judicata and limitation were also questions on which judicial opinion could not be said to be
uniform and that it was desirable to have those questions also considered by a Full Bench. The position, therefore, was that before its transfer to
this court, the whole appeal stood referred to a Full Bench for disposal. I recall that, at the outset, when the appellant by counsel opened his
appeal before us, we were apprised of the position but we considered that so far as this court was concerned, there was no necessity for the
appeal to come before a Full Bench on any of the questions. The learned counsel appearing for both the parties also appeared to agree with that
view. The appeal was therefore, proceeded with and was disposed of by us.
(3) The contention of Sri Paikaday is that in view of the order of reference to a Full Bench made in the High Court of Travancore Cochin, we were
not, as a Division Bench of this court, competent to ignore it and decide the appeal. He urges that the order of reference conferred a right upon the
appellant to have the appeal heard and disposed of by a Bench of three Judges and this right remained unimpaired even after the transfer of the
appeal to this court. In support, he has relied on certain provisions of the Travancore Cochin High Court Act, 1125 and Ss. 50(2) and 66(4) of the
States Reorganisation Act, 1956.
(4) The first of the Acts, which was published in Gazette Extraordinary dated 28-12-1949 appears to have been enacted to make provision
regulating the business of the High Court of Travancore-Cochin, for fixing the jurisdiction and powers of single Judges, Division Benches and Full
Benches and for certain other matters connected with the functions of that High Court, Section 6 of this Act provides that the seat of the High
Court of Judicature of the State of Travancore-Cochin shall be at Ernakulam subject to the proviso that such Judges of the High Court, not
exceeding three in number, as may from time to time be nominated by the Chief Justice shall sit at Trivandrum and exercise, in respect of the cases
arising in the district of Trivandrum, the jurisdiction and power conferred by this Act of a single Judge or a Division Bench of two Judges, as the
Chief Justice may determine. Under S. 15 of the said Act, the Chief Justice is from time to time, to determine which Judge in each case shall sit
alone and which of the Judges of the court whether with or without the Chief Justice shall constitute the several Division Courts. S. 16 vests in the
Chief Justice the administrative control of the High Court which he will exercise in such manner and after such consultation with the other Judges,
as he may think fit. The jurisdiction and powers of the High Court including those of single judges are then dealt with in the rest of the section and it
is only necessary for the purpose of this petition to refer to S. 24 which reads.
Any case, civil or criminal of a special or novel character, or involving an important point of law, may be referred to a Full Bench for hearing and
decision either by the Chief Justice before the case is heard by a Division Bench of two Judges or by such Bench when hearing the ; case. The
decision of the Full Bench or in the case of a difference of opinion, the decision of the majority shall be final.
According to Sri Paikaday, this section shows that once a Division Bench of two Judges has made a reference of a case to the decision of a Full
Bench, neither the Chief Justice nor the same or any other Division Bench could go behind the order of reference and the appellant in such
circumstances acquired a right under the order of reference to have his appeal heard by a Full Bench of three Judges. The learned counsel submits
that this right of the appellant is protected by the provisions of the States Reorganisation Act, 1956 and refers to Ss. 50(2) and 66(4). Sub-section
(1) of S. 50 states that, as from the appointed day, the High Courts of all the existing Part B States shall cease to function. Sub-sec (2) provides,
Nothing in sub-section (1) shall prejudice or affect the continued operation of any notice served, injunction issued, direction given or proceedings
taken before the appointed day by any of the courts abolished by that sub-section under the powers then conferred upon that court.
Section 66 deals with the High Court for the areas added to Madras and by sub-sec. (1) extends the jurisdiction of the High Court at Madras as
from the appointed day, to the whole of the territories transferred to the State of Madras from the State of Travancore-Cochin. Sub-s. (2)
provides for consequential transfer of cases arising from such territory to this High Court. Sub-section (4) is :
(4) Any order made :
(a) by the High Court of Travancore Cochin before the appointed day in any proceedings transferred to the High Court at Madras by virtue of
sub-sec. (2) : or
(b)............ shall, for all purposes have effect nor only as an order of the High Court of Travancore-Cochin or the High Court of Kerala as the case
may be, but also as an order made by the High Court at Madras.......
The argument based on these provision is that notwithstanding the abolition of the High Court of Travancore-Cochin as that of a Part B State and
of the transfer of Kanyakumari district to the Madras State and of the appeal to this court, the order of reference to a Full Bench was in full force
and effect as if it was made by this Court and that the appellant was, therefore, entitled to have his appeal heard by a Full Bench of three judges.
(5) In my opinion, the entire argument to behalf of the petitioner proceeds on a misapprehension that he has a right vested in him by the order of
reference to have his appeal heard by a Full Bench of three judges. There is nothing in S. 24 or any other provision of the Travancore-Cochin High
Court Act, 1125 or in S. 50(2) and S. 66(4) of the States Reorganisation Act, 1956, which warrants any such claim. The only right of the
petitioner obviously was to appeal to the High Court and it certainly did not include a right or claim to have the appeal heard by one or more
Judges constituting a Division Bench of a Full Bench. It is true that S. 24 of the Travancore-Cochin High Court Act, 1125 regulates how and when
the Chief Justice or a Division Bench may make reference of a case to a full Bench. But this is only by way of an arrangement for convenient
disposal of cases having regard to the exigency and necessity in particular circumstances. No more is scope of that section and its language does
not warrant the view that it confers any right upon a litigant to have his case heard by a particular number of Judges of the High court. Constitution
of Benches or arrangement for sitting of single judges is entirely a matter of routine procedure unlike a right of appeal, and S. 24 only lays down the
procedure so far as the High Court of Travancore Cochin is concerned, in the matter of making reference to a Full Bench.
(6) The same view appears to have been taken by the High Courts of Andhra Pradesh Mysore and Kerala. In In re Sridhar Rao, AIR 1958
AP60, the main question decided by Subba Rao C. J., (as the learned Judge then was) and Jagan Mohan Reddy J., was whether a Letters Patent
would lie against the judgment of a single Judge of the Andhra Pradesh High Court disposing of a second appeal arising out of the area which was
part of the erstwhile Hyderabad State but included at the time of the decision in the Andhra Pradesh State. The appellate jurisdiction of the Andhra
High Court is regulated by the provisions of the Letters Patent governing this court and also by the rules made by this court in exercise of the
powers conferred under the Letters Patent or otherwise. By reason of the State Reorganisation Act, 1956, all the proceedings pending in the
defunct Hyderabad High Court and statutorily transferred to the Andhra Pradesh High Court became subject to its appellant jurisdiction and
thereafter were governed by the procedure obtaining in the Andhra Pradesh High Court. The contention, however, was that Section 119 of the
State Reorganisation Act preserved the law obtaining in the Telangana area until otherwise provided by a competent legislature, and, therefore, the
law of Hyderabad High Court continued to apply to second appeals transferred from the erstwhile Hyderabad High Court to the Andhra Pradesh
High Court and that neither the provisions of the Letters Patent nor the appellate side rules governed it.
The learned Judges recognised that S. 119 preserved the law prevailing in the Telangana area till the legislature or other competent authority
provided otherwise but observed that the section could not preserve any laws governing the jurisdiction and procedure obtained in the Hyderabad
High Court which ceased to exist from the appointed day, and when the high Court itself became defunct, it was not possible to hold that the laws
governing its jurisdiction and procedure continued to exist. The learned judges therefore held that after the appointed day, the proceeding
transferred subject to the jurisdiction of the Andhra Pradesh High Court and be governed by the procedure obtaining therein. The further
contention which is even more relevant for the present petition and which was repelled by the learned Judges, was that the appellant had a vested
right before the States Reorganisation Act was passed, to have the second appeal heard by a Bench of two Judges, and, therefore,
notwithstanding the abolition of the Hyderabad High Court, the second appeal should have been heard by a Bench of two Judges of the Andhra
Pradesh high Court and the judgment made by a single judge of that High Court was without jurisdiction. Repelling this contention Subba Rao C.
J., on behalf of the Division Bench ruled :
We think there is an essential distinction between a substantive right of appeal and the procedure prescribed for disposing of that appeal. The
second appeal filed in the Hyderabad High Court was transferred to the Andhra Pradesh High Court and was disposed of by the said High Court
in accordance with the procedure prescribed by that High Court for disposing of such appeals. Whether the appeal is disposed of by a single judge
or by a Bench of the two Judges it is a disposal by the High Court itself. The internal distribution and allocation of work between the among the
Judges of the High Court is a matter of procedure and the change of the procedure does not affect the vested right of a party as it does not deprive
him of his right of appeal to the High Court. In this view, we hold that Ansari J., had ample jurisdiction under the Appellate to dispose of the
second appeal.
Chanabasappa v. Narasing Rao, AIR 1959 Mys. 253 was a second appeal which arose form the District Court of Gulbarga, but for the transfer
of the territory to the State of Mysore under the State Reorganisation Act, it would have been heard by a Bench of two Judges of the Hyderabad
High Court as provided by S. 6 of the Hyderabad High Court Act. When the appeal came before a single Judge of the Mysore high Court, a
preliminary objection was raised on the ground that the appeal should be heard by a Bench of two judges. The learned Judge overruled the
objection and disposed of the appeal after drawing attention to the practice and rules of the Mysore High Court according to which a second
appeal is heard and disposed of by a single Judge. A Full Bench of the Kerala High Court in Kochupennu Kochikka Vs. Kochikka Kunjipennu
and Others, has accepted the same principle, recognising that the rules providing for the hearing of the appeal by a single judge or by a Bench of
two or more judges are merely rules regulating the internal working of the court and such rules cannot confer any right on a litigant. In that case an
appeal was heard by a single Judge which under the pre-existing rules would have been heard by a Bench of two judges. The argument that the
disposal by a single Judge of the appeal was violative of a right vested in the appellant to have it heard by two judges under the earlier rules was
rejected.
(7) It is therefore, abundantly clear that the disposal of the appeal by us was not open to any objection based on jurisdiction or any vested right in
the appellant. The procedure of this court in the matter of reference to a Full Bench is not governed by any statutory provision, but by its prevailing
practice. It is not permissible to any litigant to claim as a matter of right, in the absence of a statutory provision to have his case decided by any
particular judge or judges of this court. The first ground therefore, is rejected.
(8) It is next contended that the particular counsel who appeared for the appellant before us was instructed by him through his senior counsel at the
trial to raise a point based on the principle embodied in S. 88 of the Indian Trusts Act but at the hearing of the appeal, he failed to argue the pint
and this ""misconduct"" that is how Sri Paikaday described it on the part of the counsel arguing the appeal was a sufficient ground for review. In
support of his contention reference was made to a number of decided cases. I think it will be wholly unnecessary to refer to any of them as I am of
opinion that each of those cases proceeded on the particular facts and laid down no principle applicable to the instant case. Assuming that the
counsel who argued the appeal before us had specific instructions from his client to argue a certain point, and he failed to argue the point
designedly or by inadvertence, I do not think that in itself, without anything more would be enough to warrant a review of the judgment.
(9) The petition is dismissed with costs.
(10) Petition dismissed.