Maliram Agarwal vs Ram Nivas Gupta and Others

Lingaraja Rath, J.—This appeal is directed against the order of the learned single Judge, Justice B. Subhashan Reddy holding Ramanivas Gupta and Others Vs. Maliram and Others, to be maintainable before him and as being not necessary to be listed before a Division Bench. Since this is the only question urged, we have heard the counsels on both sides and this case is disposed of at the admission stage.

Bereft of unnecessary details, the facts are:-

O.S. No. 856 of 1985 was filed on 22-7-1985 for specific performance of contract regarding sale of shops and residential portions on the first floor. The suit though instituted for higher valuation, yet only the third plaintiff pursued the suit for the relief claimed by him. The value of the property claimed by the 3rd plaintiff who is the respondent in the appeals was Rs. 1,52,000/- and the claim being decreed, C.C.C.A. Nos. 39, 41, 47 and 49 of 1994 have been preferred. All the appeals relate to the same shops and corresponding portion thereon valued at Rs. 1,52,000/- and each of the appeals are valued as such.

Mr. D.V. Reddy, the learned Counsel for the respondent in the appeals and present appellant, took an objection as to the maintainability of the appeals by the learned single Judge contending that the rights of appeal of the appellants are to be determined in accordance with the date of institution of suit as the right to appeal is a vested right and that since 28-7-1985, i.e., the date of the suit, the single Judge had jurisdiction to entertain the appeals valued at Rs. 50,000/-only. Under the Rules of High Court of Judicature, Andhra Pradesh (Appellate Side) the appeals are not maintainable before the single Judge. It is the contention that the amendment of the Rules of the High Court of Judicature of Andhra Pradesh (Appellate Side) on 27-3-1986 enhancing pecuniary limits from Rs. 50,000/- to Rs. 3,00,000/- so far as the single Judge is concerned is not applicable to the appeals preferred by the appellants. The learned single Judge rejected the submissions holding that an appeal has to be instituted in the forum as is provided for and existing on the date on which the appeals are presented as the rule relating to entertainment of the appeals before the single Bench or Division Bench are the rules of procedure and retrospective in nature.

The right of appeal is a substantive right and the existence or otherwise of such right is determined on the basis of the date of institution of the original proceedings is no longer resintegra in view of the decision of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, ,. In that case, the Supreme Court followed the leading case in Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369, and Anr. case and held that the right of appeal is not a mere matter of procedure but a substantive right and that the institution of the suit carries with it implication that all rights of appeal then in force are preserved to the parties thereto till rest of the career of the suit. Such vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. In a later decision in Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim and Others, , the law was reaffirmed saying that the right of appeal is a substantive right and the institution of the suit carries the implication and explaining that the only exceptions to the Rule are (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retorspective effect and (2) when the Court to which appeal lay at the commencement of the suit stands abolished.

While the right of appeal has thus been recognised conclusively as a vested right and available to be exercised in accordance with its availability on the date of institution of the suit, yet there cannot be any substantive right of having the case heard by specified number of Judges of the Court. When an appeal lies to the High Court, its listing before a single Judge or a Division Bench is a matter of procedure in which there can be no vested right. A change in the procedural law is always retropsective. The question was conclusively decided in the decision in Ittavira Mathai Vs. Varkey Varkey and Another, , wherein, repelling the contention that an appeal preferred to the Travancore-Cochin High Court against a decree passed in a suit instituted prior to the repeal by Act 5 of 1125 was to be heard by a Full Bench of the High Court in accordance with the repealed law, the Court said as under:

"There is yet another reason why the argument of the learned Counsel cannot be accepted. That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of Judges. An appeal lay to the High Court and the appeal in question was in fact heard and dsiposed by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges."

The decision was followed in P. Mohammed Meera Lebbai Vs. Thirumalaya Gounder Ramaswamy Gounder and Others, , wherein the question for consideration was similar as in the present case and similar contention as is advanced now was negatived. The decision in Mukund Deo (Dead) represented by his legal representatives Kasibai and Others Vs. Mahadu and Others, , on which reliance was placed by the learned Counsel for the appellant has no application as in that case the Court was not dealing with a similar case and is easily distinguishable.

The decision of this Court in Venkateswarlu v. Satyanarayana 1956 ALT 152 : 1956 An. W.R. 117 : AIR 1957 A.P. 49, is not a citation on the point at issue. The question before the Court in the case was whether an appeal of a lower valuation could be posted directly before the Division Bench without having been referred to it by a single Judge and if the Division Bench decides the appeal, whether it would be acting without jurisdiction. The Courtheld that point in the negative. The decision of this Court in Rayalaseema Bank Ltd. Vs. Tharigopala Pedda Narayanappa and Another, , agian is not a decision having any relevance to the question as it only purported to decide that the appellate side rules of the Court are statutory and not administrative in character.

In the result, the appeal has no merit. It is dismissed, but in the circumstances there shall be no order as to costs. The oral application for leave to appeal to the Supreme Court of India is rejected.