Madan Mohan and others vs Kewal Krishen and another

Jaswant Singh, J.—This is an application for grant of a certificate for the purpose of filing an appeal to the Supreme Court of India against

our judgment and decree dated December 10, 1973 rendered in appeal No. 4 of 1972 preferred against the judgment and decree of a learned

Single Judge of this Court dismissing the respondent's civil original suit for partition of certain properties.

Mr. T.S. Thakur appearing on behalf of the respondents has raised an objection to the effect that in view of the amendment of Article 133 of the

Constitution brought about by the Constitution (Thirtieth Amendment) Act, 1972, which was applied to the State vide the Constitution (Application

to Jammu and Kashmir) Second Amendment Order, 1974, the certificate sought for cannot be granted as the case does not involve a substantial

question of law or of general importance requiring to be decided by the Supreme Court.

Mr. I.K. Kotwal appearing for the petitioners has on the other hand contended that since the impugned judgment was given by the court before

the issue of the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1974 which came into force on June 26, 1974, and

the application for leave to appeal was also made before that date and the said judgment is one of the reversal, his clients are as of right entitled to

a certificate.

We have carefully considered the submissions of the learned counsel for the parties. The contention of Mr. Thakur is, in our opinion, well

founded and must prevail. It is no doubt true that the impugned judgment is one of reversal. It is also true that the value of the subjectmatter of the

dispute in the Court of first instance and on appeal was and still is above Rs. 20,000/. But these are no longer valid considerations as would be

evident from a combined reading of the Constitution (Thirtieth Amendment) Act, 1972, and the Constitution (Application to Jammu and Kashmir)

Second Amendment Order, 1974. Whereas under Article 133 (1) (a) of the Constitution as it originally stood an aggrieved person was entitled as

of right to a certificate if the value of the subjectmatter of the dispute in the court of first instance and still in dispute on appeal was and continued to

be not less than Rs. 20,000/ and the judgment sought to be appealed against was not one of affirmance, under Article 133 as now amended an

appeal to the Supreme Court from a judgment, decree or final order in a Civil Proceeding of a High Court can lie to the Supreme Court only if the

High Court certifies;

a) that the case involves a substantial question of law of general importance, and

b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

In the instant case no such question in our opinion is involved.

Mr. Kotwal has next contended that his clients cannot be denied the certificate as their case squarely falls within the exception envisaged by

clause (b) of SubSection (1) of Section 3 of the Constitution (Thirtieth Amendment) Act, 1972, as applied to the State. This contention is also

misconceived. For a case to come within the ambit of Clause (b) of subsection (1) of Section 3 of the Act, it is necessary that the certificate must

have been given by the High Court before the commencement of the Constitution (Application to Jammu and Kashmir) Second Amendment

Order, 1974 i. e. before June 26, 1974. In the instant case no certificate having been issued before the said date the application cannot be allowed

at this stage. This view receives ample support from subsection (2) of Section 3 of the Constitution (Thirtieth Amendment) Act, 1972 which so far

as our State is concerned provides that subject to the provisions of subsection (1) i. e. except in cases covered by subsection (1) there will be no

appeal to the Supreme Court 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 the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1974,

unless it satisfied the provisions of Clause (1) of Article 133 as amended by the Constitution (Thirtieth Amendment) Act, 1972, which means that

the Constitution (Thirtieth Amendment) Act, 1972 has a retroactive operation and even the applications filed for grant of certificate before the

commencement of the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1974 but not disposed of have to satisfy the

requirements of Cause (1) Article 133 of the Constitution of India as now amended. In other words the certificate in pending applications can only

be granted by the High Court if the judgment, decree or final order involves a substantial question of law of general importance which in the opinion

of the High Court needs to be decided by the Supreme Court.

I am fortified in this view by the decision of the Calcutta High Court in Hukumchand Insurance Co. Ltd. v. Smt. Subashini Roy, AIR 1974 Cal

321 where a similar contention was repelled by their Lordships of that court in the following words:

From a fair reading of the above provisions it is quite clear that under Cls. (a) and (b) the appeal either must be pending or preferred on or after

the commencement of the Act by virtue of certificate already given by the High Court before the commencement of the Act under subclauses (a),

(b) or Subclause (c) of Clause (1) Article 133. It is, however, said that the latter group of appeals will also include an application for appeal but we

think the language of the statute is quite clear and does not admit of any such interpretation. Firstly because, there is no reference to these appeals

in any form pending before the High Court at the commencement of Amendment Act and secondly because it is provided in the next paragraph

that every such appeal would be heard and disposed of or as the case may be entertained and disposed of by the Supreme Court as if this Act had

not been passed. It seems, therefore quite clear that all such appeals must be pending or preferred before the Supreme Court and not the High

Court on or after the date of the commencement of the Amendment Act. We therefore, do not find any substance in the point raised.

To the same effect is the recent decision of the Delhi High Court in Gopi Krishan Khanna v. Smt. Kailash Wati AIR 1975 Delhi 38 where it was

held:

The thirtieth amendment of the Constitution has substantially narrowed down the appellate jurisdiction of the Supreme Court in appeals from High

Courts in regard to civil matters. It will seen from subsection (2) of Article 133 of the Constitution as amended, that it has created an absolute bar

to an appeal under the said Article to the Supreme Court, unless such appeal satisfies the requirements of Article 133 (1). Under the amended

Article 133 (1) an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High

Court Certifies that the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question

needs to be decided by the Supreme Court. The vested right of appeal whatever it was, has been specifically taken away by the Thirtieth

Amendment to the Constitution. The language employed in subsection (2) of Article 133 shows that Article 133 (1) has been given retrospective

affect and now a right of appeal to the Supreme Court in a suit or other civil proceeding which was instituted or commenced in any court before

the 30th Amendment came into force would be governed by Article 133 (1), as amended.

As already observed, the instant case does not involve any substantial question of law of general importance which requires to be decided by

the Supreme Court. We cannot, therefore, see our way to grant the certificate sought for by the petitioners. The application is accordingly

dismissed.

S. M. F. ALI, C. J. : I agree.