Noor Mohammad vs Sedmal

This is a petition for leave to appeal to the Supreme Court filed on behalf of the Defendant against the judgment of this Court allowing the appeal of the Plaintiff and setting aside the judgment of the trial Court which had dismissed the suit.

In this petition Shri Sadashiv Rao, Advocate, urged before us that though the subject-matter of the suit at the time of the institution of the suit was Rs. 16257/9/3 yet at present it. is Rs. 21700/- and as the suit was filed before the enforcement of the Constitution and before the, amendment of Section 110, CPC it cannot take, away the vested right of appeal of the Petitioner, and the petition for leave to appeal to the Supreme Court should be granted, more so, when the judgment of the High Court $$ $$ of affirmance. Reliance is placed on the cases of - Mt. Murtu and Others Vs. Paras Ram and Others, and - Kamal Nayan Ramanuj Das Vs. Bira Naik and Another,

On behalf of the other side it is urged that no question of any vested right of appeal arises as the Judicial Committee before which an anneal could be filed is not in existence now and there is no provision in the Constitution of India giving powers to the Nizam (now the Raj Pramukh) to hear the appeals. Following up the contention it is urged that the only provision applicable is Art. 133 of the Constitution, but according to this Article, it is necessary that the amount or the valuation of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than Rs. 20,000/-. Admittedly, the valuation of the subject-matter in the Court of the first instance was less than Rs. 20000/- as such no leave can be granted to the Petitioner.

We find sufficient force in this contention. Admittedly, the value of the subject-matter of the disnute in the Court of the first instance was Rs. 16257/9/3. The question, however, is whether for the fulfilment of the said requirement as regards the amount or value of the subject matter of the dispute, the present petition is to be governed by the provisions of Section 110, CPC or Art. 133 of the Constitution of India or some other provisions.

In order to decide this point, it is necessary to state that the suit was filed on 6th Khurdad 1353 F. (April ''44) which was dismissed on 15th Azur 1355 F. 20th (October ''45). An appeal was filed in this Court on 16th Dai 1355 F. (20th November 1945) which was allowed on 16-12-1952, and the present petition is dated 16-1-1953. The Constitution of India came into force on 26-1-1950 long after the institution of the suit when the Hyderabad CPC was still in force. The Indian CPC (5 of 1908) was applied to Hyderabad State on 1-4-1951.

It was urged on behalf of the Petitioner that the right of appeal was a substantive right and not a mere matter of procedure and that it would be governed by the law prevailing at the date of the institution of the suit and that right cannot be taken away by any subsequent enactment unless the subsequent enactment purports expressly or by necessary implication to be retrospective.

We do not dispute this point. It is, a fundamental rule of law that no Statute shall he construed to have a retrospective operation unless such a construction appears very clearly from the terms of the Act, or arises by necessary and distinct implication (see Maxwell on Interpretation of Statutes, Edn. 9, P. 222). It is further observed that every statute which takes, away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed to be out of respect to the Legislature, to be intended not to have retrospective effect. (see Maxwell on Interpretation of Statutes, Edn. 9, p. 222) The language of Art. 133 of the Constitution of India is also quite plain and there is nothing in it which might lead to the conclusion that it was meant to have a retrospective effect.

Now we have to see what was the law prevailing at the time of the institution of the suit. The relevant law in force on 6th Khurdad.135� F, when the present suit was filed was not that contained to the Civil Procedure Code, for, the Code was applied to the State of Hyderabad on 4-4-1951. Second appeals were admitted in the High Court under the provisions of the Hyderabad CPC and appeals against the decree and order of the High Court were preferable to the Judicial Committee under the Special Act known as the "ZABT-E-JUDI-CIAL COMMITTEE". Of course, the provisions of that Act were similar to those embodied in Section 110, CPC as it existed before the amendment to that Section and Art. 133 of the Constitution of India, the only difference being in regard to the valuation of the subject-matter of the suit. According to the law prevailing then, an appeal could lie to the Judicial Committee if the value of the subject matter of. the suit was not less than Rs. 10,000/-.

This Act was replaced by the Appeals to H. E. H. the Nizam''s Regulation No. 21 of 1358 F. This Regulation was in similar terms excepting that according to this Regulation also the valuation of the subject matter ought not to be less than Rs. 10,000/-. By a Firman dated 23-11-1949, H. E.H. the Nizam accepted the Constitution of India as being suitable for the Government of Hyderabad. On 26-1-1950, the Constitution of India became applicable to the Union of India and the Part B States. Under Art. 374 (4) on and from the commencement of the Constitution, the jurisdiction of the authority functioning as the Judicial Committee here to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any Court within the State ceased and all appeals and other proceedings pending before the, said authority at such commencement stand transferred to and have to be disposed of by the Supreme Court. This sub-clause thus abolishes the jurisdiction of the Judicial Committee and after the Constitution of India came into force that body and its jurisdiction altogether ceased. There is no other provision in the Constitution authorizing the Nizam (at present the Raj Pramukh) to hear such appeals. The alleged right of appeal was to H. E. H. under the then prevailing law "ZABT-E-JUD1CIAL COMMITTEE" and latterly the Regulation No. 21 of 1358 F., and when that authority has ceased to function, and the Act and the Regulation are no more in force and when there is no provision in the Constitution authorising H. E. H. to entertain and dispose of appeals, no question of any vested right of appeal arises. Similar observations were made by their Lordships of the Supreme Court in the case of Janardan Reddy and Others Vs. The State of Hyderabad and Others, . The cases cited by the learned Advocate for the Petitioner do not apply to the facts of the present case. In both the cases appeals could lie to the then Privy Council and now the Supreme Court while this is not so in the present case as no appeals from the decree or order of this Court could lie to the Privy Council then.

Further in the Orissa case the petition for leave to appeal to the Supreme Court was filed long before the Constitution of India came into force. In view of this, we do not wish to discuss them in detail. Thus, the only provisions applicable are Art. 133 of the Constitution of India and Section 110, Indian CPC (5 of. 1908). According to these provisions it is necessary that the amount of the valuation of the subject matter of the dispute in the Court of first Instance and still in dispute in appeal was and is not less than Rs. 20,000/-. Admittedly, the valuation of the subject-matter of the dispute in the Court of the first instance is less than Rs. 20,000/-. Thus the present petition docs not fulfil the requirements of both the said provisions of law.

We have then to consider whether the Petitioner would be entitled to the benefit of Art. 133 (c). Under this provision it is necessary that this Court should certify that it is a fit case. It is urged on behalf of the Petitioner that a substantial question of law is involved and that as such leave should be granted. We do not agree with this either. There is no such substantial question of law in the case within the meaning of Para 3 of Section 110, CPC The only point is whether the Hyderabad Money Lenders'' Regulation of 1347 F. or the Hyderabad Money Lenders'' Act of 1349 F. is applicable to the case. It was held that the Hyderabad Money Lenders'' Act of 1349 F. was applicable. It is a matter which has been determined with reference to facts and no question of law either of public or private importance arises and, therefore, leave cannot be granted either under Art. 133 CI. (c) or u/s 110 sub-s. 3. On the merits also we are of the opinion that this is not a fit case. The suit is based on a pro-note which is admitted. The, pro-note is for previous loans advanced which are also admitted.

The only contention is that accounts were never gone into and the amount consists of interest and compound interest. This Court has held that after the execution of the pro-note, accounts cannot be opened and the pro-note was executed after going through the accounts.. The petition is, therefore, rejected.