Sp. Rm. Ramaswami Chettiar vs Sp. Rm. Sp. Ramanathan Chettiar and Others

Subba Rao, J.—This is an application for leave to appeal to the Supreme Court. The judgment of the High Court was delivered on 1-12-

1948. On 19-4-1949, the application for leave to appeal to the Federal Court was filed under Sections 109, 110 and Order 45, Rule 2, Civil P.

C., and Section 3 of Act I [1] of 1948. By the decree of the High Court, the judgment of the Subordinate Judge was reversed. Admittedly, the

value of the subject-matter in the suit as well as on appeal to the Federal Court was more than Rs. 10,000. But for the Constitution of India, the

applicant had a right to appeal to the Federal Court under Sections 109 and 110, Civil P. C., subject to a certificate under Order 45, Civil P. C.,

to the effect that the requirements of Section 110 were complied with. The learned counsel for the respondent, based his objection mainly on the

ground that as the subject-matter was below Rs. 20,000 no appeal lay to the Supreme Court under Article 137 of the Constitution of India

(hereinafter referred to as the Constitution). The relevant provisions of the Code may be extracted :

Section 109. Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the Courts of British

India and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council-

(a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;

(b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction; and

(c) from any decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council.

Section 110. In each of the cases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the

Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to the His

Majesty in Council must be the same sum or upwards,

or, the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value,

and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such a decree or final

order, the appeal must involve some substantial question of law.

Order 45 Rule 3. (1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature,

the case fulfils the requirements of Section 110, or that it is otherwise a fit one for appeal to His Majesty in Council.:

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not

be granted.

Rule 6. Where such certificate is refused, the petition shall be dismissed.

Rule 8. Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall-

(a) declare the appeal admitted,

(b) give notice thereof to the respondent,

(c) transmit to His Majesty in Council under the seal of the Court a correct copy of the said record, except as aforesaid, and

(d) give to either party one or more authenticated copies of any of tho papers in the suit on his applying therefore and paying the reasonable

expenses incurred in preparing them.

The relevant provisions from the Constitution are extracted below :

Article 132(1). An appeal shall lie do the Supreme Court from any judgment, decree or final order of a High Court in the territory of India,

whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation

of this Constitution.

(2) Where the High Court has refused to give such a certificate, the Supreme Court may, if it is satisfied that the case involves a substantial

question of law as to the interpretation of this Constitution, grant special leave to appeal from such judgment, decree or final order.

(3) Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court on the ground that any such

question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground.

Explanation: For the purposes of this article, the expression ''final order'' includes an order deciding an issue which, if decided in favour of the

appellant, would be sufficient for the final disposal of the case.

Article 133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the

territory of India if the High Court certifies-

(a) that the amount or value 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

twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting properly of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court;

and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a cape

referred to in Sub-clause (o), if the High Court further certifies that the appeal involves some substantial question of law;

(2) Notwithstanding anything in Article 332, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such

appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall unless Parliament by law otherwise provides, lie to the Supreme Court from the

judgment, decree or final order of one Judge of a High Court.

Article 134. (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in

the territory of India if the High Court-

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused person and

sentenced him to death; or

(c) certifies that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under Sub-clause (o) shall He subject to such provisions as may be made in that behalf under Clause (1) of Article 145

and to such conditions as the High Court may establish or require;

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or

sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

Article 135. Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to

which the provisions of Article 133 or Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal

Court immediately before the commencement of this Constitution under any existing law.

Article 374(3): All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall

stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and

orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had

been delivered or made by the Supreme Court.

Section 3 of the Federal Court (Enlargement of Jurisdiction) Act, 1947, reads: ""As from the appointed day,--

(a) an appeal shall lie to the Federal Court from any judgment to which this Act applies-

(i) without the special leave of the Federal Court, if an appeal could have been brought to His Majesty in Council without special leave under the

provisions of the Code of Civil Procedure, 1908, or of any other law in force immediately before the appointed day, and

(ii) with the special leave of the Federal Court in any other case; and

(b) in any such appeal as aforesaid it shall be competent for the Federal Court to consider any question of the nature mentioned in Sub-section (1)

of Section 205, Government of India Act 1935; and

(c) no direct appeal shall lie to His Majesty In Council, either with or without special leave, from any such judgment.

A combined reading of the provisions brings out the following salient features: (i) The Supreme Court is now made the final authority both in civil

and criminal proceedings; the jurisdiction of the Privy Council and the Federal Court ceases with commencement of the Constitution and all

appeals and other proceedings pending in those Courts are transferred to the Supreme Court; (2) in civil proceedings for the purpose of an appeal

the pecuniary value of the subject-matter was raised from Rs. 10,000 to 20,000 presumably in view of the present enhanced value of the property;

and (3) Article 135 saves the right of appeal in respect of any matter not covered by Articles 133 and 134 of the Constitution if jurisdiction and

powers were exercised by the Federal Court in relation to that matter immediately before the commencement of the Constitution.

The learned counsel for the appellant contended that, as he filed the application for leave to appeal to the Federal Court prior to the date when

the Constitution came into force, and that as the jurisdiction and the powers of the Federal Court were exercisable in regard to the subject-matter

of the appeal immediately before the commencement of the Constitution, he would be entitled to file an appeal under Article 185 of the

Constitution; whereas the learned counsel for the respondent argued that Article 136 of the Constitution provides for a matter different from and

unconnected with the subject-matter dealt with in Arts. 133 and 134 of the Constitution in regard to which or in respect whereof the Federal Court

would have exercised jurisdiction before the commencement of the Constitution, that Article 136 could not be construed as a proviso to Article

133 in regard to matters coming below the pecuniary limits set up in that article, and that, in any view, the Federal Court''s jurisdiction and the

powers in regard to the subject-matter of this appeal were not exercisable immediately before the commencement of the Constitution as such

exercise depended on the leave of the High Court being granted, but in this case was not obtained. It may be premised that the question can only

be decided on a construction of the provisions of the Constitution. The Supreme Court derived its powers and jurisdiction under the Constitution

and therefore the limits of its jurisdiction should be gathered only from its provisions. The learned advocate for the applicant relied upon the

decision of the Judicial Committee in Colonial Sugar Refining Go. v. Irwing, (1905) A. C. 369 : 74 L. J. p. c. 77. In that case the facts ware: The

Order in Council of 80-6-1860, gave a right of appeal from the Supreme Court of Queensland to His Majesty in Council. By the Australian

Commonwealth Judiciary Act, 1903, that right of appeal had been taken away and instead an appeal had been provided to the High Court of

Australia. The suit was pending when the latter Act was passed, and was decided by the Supreme Court after the right of appeal was taken away.

The question arose whether the Supreme Court had power to grant leave to appeal to the King in Council. The Judicial Committee held that an

appeal lay to the King in Council. The reason for the decision is found at p. 372 as follows:

The Judiciary Act is not retrospective by express enactment or by necessary intendment and therefore the only question is, was the appeal to Hig

Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? .... In either case

there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless

a clear intention to that effect is manifested.

The principle of this decision has been applied by a Full Bench of this Court in Vasu-deva Samiar In re, 52 Mad. 861: A. I. R. 1929 Mad. 381

where in a suit instituted on 30-7-1919, a second appeal was presented on 15-7-1924 and finally disposed of by a single Judge of the High Court

on 9-2-1928. An appeal was preferred against that judgment under the Letters Patent on 24-4-1928 without leave to appeal having been obtained

from the learned Judge who decided the second appeal. The Letters Patent was amended and came into force on 31-1-1929 whereunder it is

provided that no such appeal would lie without the leave of the Judge being obtained. The learned Judges held, following the aforesaid principle,

that the appeal lay though no leave was obtained. At p. 366 they say;

We must therefore hold, however reluctantly, that the institution of the 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

intendment given the Act a retrospective effect.

The two cases relate to amending Acts and therefore the decision turned upon the question whether the amending Act affected the vested rights of

a suitor. But in the case of the Constitution which made India for the first time a Sovereign Democratic Republic, the powers and jurisdiction of the

Supreme Court must be found within the four corners of the Constitution. The Federal Court was abolished and, for the first time, the Supreme

Court of India came into existence under the new Constitution. When a question arises as to whether an appeal lies to the Supreme Court against a

judgment of the High Court, unless the Constitution confers such a right no such appeal would lie. Therefore it becomes necessary to decide

whether Article 135 confers any such right of appeal against the judgment now in question. ""Matter"" in Article 135 is a word of wide connotation.

It may include subject matter not dealt with by Articles 133 and 134 but governed by specific Acts in regard to which appeals Jay to the Federal

Court immediately before the commencement of the Constitution. But there is no reason to exclude from its operation subject-matter below the

pecuniary limits prescribed under Article 133 of the Constitution if the jurisdiction and powers in relation to that matter were exercisable by the

Federal Court immediately before the commencement of the Constitution. It would certainly be a subject-matter in regard to which the provisions

of Article 133 or Article 134 do not apply.

The next point is whether in regard to the subject-matter in question the jurisdiction and powers of the Federal Court were exercisable before

the commencement of the Constitution. It cannot be disputed that an appeal would have lain against the decree and judgment to this Court if it

complied with the provisions of Sections 109 and 110, Civil P. C. But it is said that the Federal Court could not have exercised jurisdiction till this

Court gave leave and that, as no leave was obtained before the commencement of the Constitution, the jurisdiction and powers of the Federal

Court were not exercisable in regard to this matter. But a perusal of the relevant provisions indicate that the party had a right of appeal against the

judgment of the High Court if the conditions laid down under Sections 109 and 110, Civil P. C. had been com-plied with though a certificate by

the High Court under Order 45, Civil P.C. was required to the effect that such conditions were complied with. The jurisdiction of the Federal

Court did not depend upon the certificate but on a compliance of the conditions laid down in the relevant sections though without such a certificate

the appeal to the Federal Court would not have been admitted. Further, u/s 3 of the Federal Court (Enlargement of Jurisdiction) Act, 1947, though

the High Court did not issue the requisite certificate, the Federal Court could have exercised its jurisdiction by granting special leave.

If the argument of the respondent were to be accepted in view of Article 374(2) of the Constitution, Article 135 would become redundant and

unnecessary. For, under Article 374(2) all suits, appeals, proceedings, civil or criminal, pending in the Federal Court at the commencement of this

Constitution shall stand removed to the Supreme Court and the Supreme Court shall have jurisdiction to hear them and there fore Article 136 must

have been intended to provide for other cases not pending in the Federal Court. The construction we are inclined to put upon Article 135

reconciles the provisions of both the articles without making Article 133 otiose for some years to come. We, therefore, hold that, under the

provisions of the Constitution, an appeal lies against the judgment and decree of the High Court delivered prior to the commencement of the

Constitution if an appeal lay to the Federal Court having regard to the pro visions of Sections 109 and 110 and Order 45, Civil P. C.

In the result, tho application is allowed,