In Re: Sridhar Rao and another

Subba Rao, C.J.—This raises the question whether a Letter patent Appeal would lie against the judgment of a single Judge of this High Court disposing of Second Appeal arising out of the area, which was part of the erstwhile Hyderabad State but now included in the Andhra Pradesh State.

On 21-11-1956, Ansari J., allowed S.A. No 84/1 of 1956 setting aside the decree of the appeal late Court and restoring that of the trial Court. At the time the judgment was delivered, no request was made to the learned Judge for leave to prefer a Letters Patent Appeal. But, on 13-2-1957, the respondents in the appeal presented a Letters Patent Appeal to this Court and also an application for granting them leave to prefer the appeal. The office raised an objection as regards the maintainability of both the appeal and the petition for excusing the delay. As many Letters Patent Appeals have been filed under similar circumstances and some more are likely to be filed, this case has been posted for an authoritative ruling of this Court.

Clause 15 of the Letters Patent issued under Acts 24 and 25 Victoria governs the right of a party to prefer an appeal from the judgment of a single Judge of the Madras High Court in exercise of second appellate jurisdiction to the said High Court. The relevant part of the clause reads :

and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to S. 108 of the Government of India Act (made on or after the 1st day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appear. Rule 95 of the Appellate Side Rules of the Madras High Court made by the said High Court in exercise of the powers conferred on it under the Letters Patent provides :

"When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, any application for a certificate that the case is a fit one for further appeal to the High Court under Clause 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered." The combined effect of Clause 15 of the Letters Patent and statutory R. 95 made by the Madras High Court is that a Letters Patent Appeal lies against the judgment of a single Judge of the Madras High Court disposing of a second appeal if he grants leave to prefer such an appeal on request orally and immediately made by an aggrieved party after the judgment has been delivered.

The State of Andhra came into existence on 1st October, 1953. Under S. 30 of the Andhra State Act, the High Court of Andhra shall have in respect of the territories for the time being included in the State of Andhra all such original, appellate and other jurisdiction as under law in force immediately before the prescribed day is exercisable in respect of the said territories or any part thereof by the High Court at Madras. Section 32, which provides for practice and procedure in the Andhra High Court, says :

Subject to the provisions of this Part, the Law in force immediately before the prescribed day with respect to practice and procedure in the High Court at Madras shall with the necessary modifications, apply in relation to the High Court of Andhra. and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the prescribed day exercisable by the High Court at Madras.

By virtue of the aforesaid two provisions, the High Court of Andhra was invested with the same jurisdiction exercised by the Madras High Court before the appointed day and was also ordained to follow the same practice and procedure obtaining in the High Court of Madras and to be governed by the rules or orders in regard to practice and procedure which were in force in the Madras High Court before the prescribed day till they are varied, revoked or amended by the rules made by the High Court of Andhra.

The appellate jurisdiction of the Andhra High Court is regulated by the provisions of the Letters Patent governing the Madras High Court and also by the rules made by the said High Court in exercise of the powers conferred under the Letters Patent or otherwise Therefore a Letters Patent Appeal lies against the judgment of a single Judge made in the exercise of second appellate jurisdiction by a Judge of the Andhra High Court to the said High Court if he grants leave on an oral request made by an aggrieved party immediately after judgment is delivered.

The States Reorganisation Act (Act 37 of 1956) became Law on 31st August, 1956 and, under S. 50 of that Act, all the High Courts of the B States, except Jammu and Kashmir, were abolished and, under S. 65, the jurisdiction of the Andhra High Court was extended over the Telangana area from 1st November, 1956. Sections 50 and 65 of the said Act read:

Section 50:

(1) As from the appointed day, the High Courts of all the existing Part B States, except Jammu and Kashmir and the Courts of the Judicial Commissioners from Ajmer, Bhopal, Kutch and Vindhya Pradesh shall cease to function and are hereby abolished.

Section 65:

As from the appointed day

(a) the jurisdiction of the High Court of the existing State of Andhra shall extend to the whole of the territories transferred to that State from the existing State of Hyderabad;

(b) The said High Court shall be known as the High Court of Andhra Pradesh; and

(c) the principal seat of the said High Court shall be at Hyderabad.

All proceedings pending in the High Court of Hyderabad immediately before the appointed day other than those certified by the Chief Justice of that High Court under sub-s. (2) of S. 59 or under sub-s. 2 of S. 62, shall stand transferred to the High Court of Andhra Pradesh.

Any order made by the High Court of Hyderabad before the appointed day in any proceedings transferred to the High Court of Andhra Pradesh by virtue of sub-s. 2 shall, for all purposes, have effect not only as an order of the High Court of Hyderabad but also as an order made by the High Court of Andhra Pradesh.

The effect of the said provisions is that the High Court of Hyderabad ceased to exist from the appointed day, that the Andhra High Court was renamed the Andhra Pradesh High Court, that all the proceedings arising out of the Telangana area and pending in the Hyderabad High Court immediately before the appointed day stood transferred to the Andhra Pradesh High Court, that the jurisdiction of the High Court was extended to the whole of the territories transferred to that State and that orders made by the Hyderabad High Court were given the effect of orders made by the Andhra Pradesh High Court. To put it shortly, the legal position so far relevant for the present enquiry is that all the proceedings pending in the defunct Hyderabad High Court and statutorily transferred to the Andhra Pradesh High Court become subject to its appellate jurisdiction and thereafter were governed by the procedure which obtained in the Andhra Pradesh High Court regulating that jurisdiction. If so, when a single Judge of the Andhra Pradesh High Court disposes of a second appeal statutorily so transferred from the Hyderabad High Court to the file of the Andhra Pradesh High Court, Letters Patent appeal lies against the judgment of the said Judge subject to the conditions prescribed by R. 95 of the Appellate Side Rules.

7a. It is contended that S. 119 of the States Reorganisation Act, preserves the law obtaining in the Telangana area until otherwise provided by a competent legislature or other competent authority and therefore, the Law of Hyderabad governing Second Appeals continue 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 govern it. Section 119 reads :

The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial reference in any such law to an existing State shall, until otherwise provided by competent Legislature or other competent authority, be construed as meaning the territories within the State immediately before the appointed day.

This section only preserves the laws prevailing in the Telangana area till the Legislature or other competent authority provides otherwise. The laws will be applied as if there was no territorial change. But the provisions of the section cannot preserve any laws governing the jurisdiction and procedure obtaining in the Hyderabad High Court which ceased to exist from the appointed day. When the High Court itself became defunct, it is not possible to hold that the laws governing its jurisdiction and procedure continue to exist.

They ceased to have any legal existence along with the Court with which they were bound up. This argument, if accepted, will lead to the anomaly of the jurisdiction and procedure of this High Court being governed in part by the jurisdiction and procedure of a defunct High Court. If that was the intention of the Parliament they would have clearly stated that, so far as the proceedings statutorily transferred from the Hyderabad High Court to the Andhra Pradesh High Court were concerned, the Andhra Pradesh High Court would be governed by the provisions of the High Court Act (Act III of 1337 F).

In the absence of any such provisions, we cannot accept the aforesaid contention. We, therefore, hold that, after the appointed day, the proceedings transferred from the Hyderabad High Court would be subject to the jurisdiction of the Andhra Pradesh High Court and be governed by the procedure obtaining therein.

Learned counsel for the appellant contends that the appellant has a vested right to pursue the matter to the Highest Court in accordance with the law and the procedure obtaining at the time the suit was filed. In other words he contends that, before the States Reorganisation Act was passed, he had the right to have the Second Appeal heard by the 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 the High Court was Without jurisdiction.

A full Bench of the Madras High Court held in In Re: Vasudeva Samiar alias Vasudeva Pillai, that the institution of a suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career, unless the Legislature has either abolished the Court to which an appeal then lay, or has expressly or by necessary implication given the Act a retrospective effect. There, a suit was instituted on 30th July, 1919 and a second appeal was presented on 15-4-1924 and was finally disposed of by a single Judge of the High Court on 9-2-28.

On an appeal being preferred against the judgment, under the Letters Patent, on 24-4-1928 without leave to appeal having been obtained from the learned Judge, objection was taken to the maintainability of the appeal by reason of the amendment to the Letters Patent requiring such leave, which had come into force on the 31st January, 1928. The learned Judges, applying the principle enunciated by them, held that an appeal lay under the Letters Patent without obtaining the leave.

The Supreme Court of India in Garikapatti Veeraya Vs. N. Subbiah Choudhury, , also held that a person, who filed a suit before the Constitution, had from the date of the institution of the suit a vested right of appeal upon the terms and conditions then in force and the judgment sought to be appealed from being a judgment of reversal and the value of the subject matter being above Rs. 10,000/-, the applicant had a vested right of appeal to the Federal Court under the Old CPC read with the Government of India Act 1935 and the Federal Court (Enlargement of Jurisdiction) Act 1947 and consequently he had a right of appeal to the Supreme Court under Art. 135 of the Constitution.

Assuming that the aforesaid two decisions apply to the present case, they would help the appellant in preserving his rights of appeal if he had any at the time the suit was instituted. Under the existing law, he had a, right to prefer a Second Appeal to the High Court of Hyderabad The procedure for disposing of the appeals was regulated by the High Court Act (Act III of 133'' F.) and, under the provisions of that Act, Second appeals within prescribed pecuniary limit should be heard by a single Judge and others by a Division Bench. It is not disputed that, under that Act, the Second Appeal should have been heard by a Bench of two Judges. The question is whether the appellant had a vested right not only to prefer an appeal to the High Court but also to have it disposed of by the High Court in the manner prescribed by the Law then in force.

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 Judge it is a disposal by the High Court itself. The internal distribution and allocation of work between and among the Judges of the High Court is; matter of procedure and the change of the procedure does not affect the vested right of a part 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 Side Rules of the Andhra Pradesh High Court to dispose of the Second Appeal.

The last question is whether this Court has power to excuse the delay in asking for leave to file a Letters Patent Appeal Rule 95 of the Appellate Side Rules, as we have already pointed out, is mandatory and it clearly lays down that the application for a certificate that the case is a fit one for appeal to the High Court shall be made orally and immediately after the judgment has been delivered. This rule was made by the High Court in the exercise of its powers under the Letters Patent, and therefore, it has statutory force. The provision is mandatory and does not confer any discretionary power on the Court to excuse the delay. It was so conceived presumably because the Judge would be in a better position to give the certificate or not when the matter was fresh in his mind. We have no power to excuse the delay, and, therefore, we dismiss the petition.

In the result, as no request was orally and immediately made after the judgment had been delivered by Ansari, J. the present Letters Patent Appeal is not maintainable against his judgment. The appeal is rejected.