Jiwani Kumari Parakh vs M.S. Ram Singh

Sankar Prasad Mitra, C.J.—This is an application for a certificate for leave to appeal to the Supreme Court under Article 133(1)(a) and (c) of the Constitution of India before the recent amendment. It is urged before us that the application was made on April 28, 1972, before the amendment came into force on February 27, 1973. In the premises, the present application, according to the Applicants, would not be hit by the amended provisions of the Constitution.

We are unable to agree with this contention. Section 3(1) and (2) of the Constitution (Thirtieth Amendment) Act, 1972, runs thus:

3(1). Nothing in this Act shall affect

(a) any appeal under Sub-clause (a) or Sub-clause (b) or Sub-clause (c) of Clause (1) of Article 133 of the Constitution which immediately before the commencement of this Act was pending before the Supreme Court; or

(b) any appeal preferred on or after the commencement of this Act against any judgment, decree or final order in a civil preceding of a High Court by virtue of a certificate given by the High Court before the commencement of this Act under Sub-clause (a) or Sub-clause (b) or Sub-clause (c) of Clause (1)of Article 133;

and every such appeal may be heard and disposed of or, as the case may be, entertained, heard and disposed of by the Supreme Court as if this Act had not been passed.

(2) Subject to the provisions of Sub-section (1), no appeal shall lie to the Supreme Court under Clause (1) of Article 133 of the Constitution from any judgment, decree or final order arising out of a suit or other civil proceeding which was instituted or commenced in any Court before the commencement of this Act unless such appeal satisfies the provisions of that clause as amended by this Act.

It is well-known 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. Vide Delhi Cloth and General Mills Co. Ltd. v. income tax Commissioner Delhi and Anr. (1926) L.R. 54 IndAp 42.

In the instant case, the proposed appeal is not covered either, by Clause (a) or by Clause (b) of Section 3(1) of the Act. It was not an appeal which was pending before the Supreme Court before the commencement of the Act. It was also not an appeal in which a certificate was given by the High Court before the commencement of the Act. The application for leave, therefore, is hit by the express provisions of Sub-section (2) of Section 3.

We have, now, to consider whether certificate can be granted under the amended provisions. The High Court can certify under the amended provisions if the case involves (i) a substantial question of law, (ii) such question is of general importance and (iii) in the opinion of the High Court the question needs to be decided by the Supreme Court.

The only point that could be argued in this case was that a decision of the Supreme Court was required on the legal effect of surrender of a lease. But unfortunately in this case surrender has not been pleaded at all. Therefore, any certificate given by us would be infructuous. It is submitted that the case involves determination of the scope of Section 146 of the CPC and of Order XXII, Rule 10 thereof. But, these are not substantial questions of law. On the contrary, the respective scope of these provisions have been well-settled by decisions over a long period of time.

We are, therefore, of opinion that no certificate can be granted in this case under the amended provisions of Article 133 of the Constitution.

The application for leave to appeal to the Supreme Court is, therefore, dismissed. There will be no order as to costs.

S.K. Datta J.

I agree.