DEDH NATHU RAJA (DEAD) BY L. RS v. L. ANGHA NATHU .JAMAL (DEAD) BY L. RS & Ors.

But, from November 1, 1956, the Saurashtra High Court was abolished, the Saurashtra Ordinance No. 2 of 1948 was repealed, and the jurisdiction of the High Court of Saurashtra was conferred upon Bombay High Court. Therefore, the single Judge of the. High Court who· heard •he first appeal, heard it not as a Judge of the Saurashtra High Court, but as a Judge of the Bombay Court. [ 443 B-C] {3) Section 52 of the States Reorganisation Act, 1956 does not mean that the jurisdiction conferred upon the Bombay High Cou'rt in respect of the territories within the State of Saurashtra WG:·s to be regulated with reference to the law which was in force on November 1, 1956 in Saurashtfa. Therefore, it dois not incorporate either expressly or by implication the limitations prescribed by s. 22A(2} of the Saurashtra Ordinance into the· Letters Patent of the High Court. [443 G-H; 444 C-D] ( 4} Sine~ the restriction placed by s. 22A of the Ordinance applied only to a iudg1nent cf a single Judge of the High Court of Saurashtra and could not apply to a judgment of a single-Judge of the, Bombay High Court, and could not operate to restrict a right of appeal exercisable under CI. 15 of the Letters Patent, the iudgment of the single Judge of the Bombay High Court \\·as, under s. 57 of the States Reorganisation Act, subject to apoeal i:o a Division Bench \Vithout a certificate of the single Judge. [443 D-FJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1456 of

#1966. Appeal from the judgment and order dated April 6, 1964 of the Gujarat High Court in Letters Patent Appeal No. 8 of 1960. F D .. U. Shah, P. C. Bhartari and J. B. Dadadwnji, for the· appellants. S. K. Dho/akis and Vineet Kumar, for resp0:ndents Nos. !(a) to l(e) and (g). G The Judgment of the Court was delivered by Shah, J.-The facts which give rise to thise appeal are few and simple. The appellant commenced on May 3, 1951 action in the Court of the Assistant Judge, Morvi, in the former Part 'B' State of Saurashtra for a decree for Rs. 9,387/5/- against one L. Angha Nathu Jamal and respondents 2 & 3 in this appeal. The Trial Court decreed the suit on October 17, 1955. An appeal was filed against the decree in the High Court of Saurashtra at Rajkot. On November 1, 1956, the High Coutt of Saurashtra was abolished and the proceedings pending in that Court stood' transferred to the High Court of Bombay. On F~bruary 21,. 436 SUPREME COURT REPORTS [1970] 2 S.C.R. 1958, Vyas, J., of the High Court of Bombay allowed the Jppeal. ·Against that order a'n app_eal under Cl. 15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas, J., certifying that the case was fit for appeal to a Division Bench of the High Court. On May 1, 1960 under the Bombay Reorganisation Act 1960, the appeal stood transfer red to the High Court of Gujarat. The High Court of Gujarat held that the appeal was incompetent in the absence of an order under S. 22A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench. With certi ficate granted by the High Court of Gujarat this appeal has been preferred. The Rulers of Indian States in Kathiawar agreed "to·unite and fategrate" their territories in one State to be styled the United State of Saurashtra with a common executive, legislature judiciary. By Ordinance 1 of 1948 the administration of covenanting States was taken over by the Rajpromukh. The Rajpramukh issued, in exercise of power reserved to him by Art. 9 cl. (3) of the Covenant, Ordinance 2 of 1948 'etting up with effect from February 29, 1948, a High Court of Judicature for the State of · Saurashtra. The expression "High Court" was defined in s. 3 ( c) as meaning "the High Court established and ·constituted by this Ordinance and functioning as the High Court of the Saurashtra State. By s. 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dispose of such appeals, revision and other cases, civil or criminal, as it may be empowered to do under the Ordinance or any enactment in force in the S!ate. By s. 22 1he High Court was also to be a Court of reference with power to hear, revise and determine all cases referred to it· By Ordinance 5 of 1950 s. 22A was added : it was provided thereby : "(1) Except as otherwise provided by any enact men~ for the time being in force, an appeal from any original decree, or from any order against which an appeal is permitted by any law for the time being in force, or from any order under Article 226 of the Consti tution of India, made by a single Judge of the High Court, shall lie to a Bench consisting of two other Judges of the High Court. (2) An appeal shall lie from a judgment of one Judge of the Hig~ Court in respect of a decree or order made in exercise of Appellate Jurisdiction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree or order certifies that the case 'is a fit <me for appeal." A B c D E F G \ D, N, RAJA V. L. A. N. JAMAL (Shah, J.) 437 A 8 ·~ c D E r Under the Constitution of territory of the United State of Saurashtra was formed into a Part 'B' State of Saurashtra. By the States Reorganisation Act 1956 the territory of the State of Saurashtra merged into the State of Bombay. India, By s. 49 of the States Reorganization Act, 1956, it was enact c)l that the High Court exercising immediatezy before the appointed day, j.urisdiction in relation to the existing State of Bombay sha!l, as from the appointed day, be deemed to be the High Court for the new State of Bombay. By s. 50(1) as from the appointed day, the High Courts of all the existing Part B States (with certain exc€ptions not material) were to cease to function 21nd were abolished. By section 52 was provided : "The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as, under appointed day, is exercisab.Ie in respect of that part of the said territor:es by any High Court or Judicial Com missioner's Court for an existing State". By s. 54 it was provided : immediately before the law in force "Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, wirh the necessary modifica tions, apply in relation to the High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules 'and orders with respect to practice. and procedure as are, immediately, before the appointed day, exercisable by the High Court for the cor~esponding State : ' 1 Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corres ponding State shall, until varied or revoked by rules or o~ders made by the High Court for a new State, apply with the necessary modifications in relation to practice and procedure in the High Court for lhe new State ns if made by that Court" . . Section 59(3) provided that all proceedings pending in the J!:igh Court of Saurashtra or in the Court of the Judicial Commis sioner for Kutch immediately before the appointed day shall ,t~md transferred to the High Court of Bombay. By s. 119 it was · provided: H "The provisions of Part II shall not be deemed to have effected any change in the territories to which any L2Sup.C!/70-6 - SUP~EME COURT REPORTS ( 1970] 2 S.C.R. law in force immediately before the appointed day extends or af11plies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." Section. 127 provided : "The provisions of this Act shall have effect notwith therewith contained in standing anything inconsistent any other law.'' In exercise of the power conferred upon the Central Govern ment by s. 120 of the States Reorganisation Act, 1956, Saurashtra (Adaptation of Laws on Union Subjects) Order, 1957, was promulgated by the Central Govt. By cl. 3 or the order it was provided that Saurashtra Ordinance 2 of 1948 shall repealed with effect from November 1, l 956. The High Court of Bombay for the new State added rr. 252-A and 252-B to the Rules of the High Court of Judicature at Bombay, Appel!ate Side, 1950. By r. 252-A it was provided : "Rules and orders relating to practice and procedure in the High Court in force immediately prior to the appointed day in the High Court of Bombay shall, subject to modifications made from time to time thereto, apply to the practice and procedure in the High Court." Rule 252-B provided : "Rules and orders relating to practice and procedure the High Courts of in the High Court framed by Nagpur, Hyderabad and Saurashtra and Judicial Com missioner's Court, Kutch, shall stand abrogated as from the !st November 1956 in the areas of the new State of Bombay which before the !st November 1956 were parts of the States of Madhya Pradesh, Hyderabad, Saurashtra and Kutch." The High Court of Gujarat held that the appeal filed by the respondents in the High Court of Saurashtra against the judgment of the Assistant Judge, was and continued to remain subject to the provisions of s. 22A of Saurashtra Ordinance 2 of 1948 and an appeal could lie against the decision of Vyas J., only if he certified that the case was fit for appeal to a Division Bench. Clause 15 of the Letters Patent of the Bombay High Court provided : "And we do further ordain that an appeal shall lie t<' the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the rxercise of appellate jurisdiction in 1espect of a A B c D E F G H A B c D E F G H D. N, RAJA v. L.A. N. JAMAL (Shah, /.) ~3~ decree or order made in the exercise of appellate juris diction by a Court subject to the superintendence of the said High Court, and not being an order made. m the exercise of revisional jurisdiction and not bemg a sentence or order passed or made in the exercise of tl!.e power of superintendence under the provisions of s. 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Cot.rt from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of, the Govern ment of India Act made on or after the first day of February 1929) in the exercise of appellai·~ jurisdictioH in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the super intendence of the said High Court, where the Judge who passed the judgment declares that the same is a fit one for appeal; but . . right of appeal from . other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Succes- sors .. . . " By cl. 15 of the Letters Patent a judgment in an appeal from a civil suit by a single Judge of the High Court of Bombay is subject to appeal to a Division Bench except when the order is made in exercise of the revisional jurisdiction of the Court or in second appeal, or in exercise of criminal exercise of power of superintein, dence under s. 107 of the Govern ment of India Act, 1935 (Art 227 of the Constitution). Vyas, J., decided the appeal• sitting as a Judge of the High Court of Bombay: Prima facie, his jud&ment delivered in a first appeal from a 1udgment of the subordmate court was subject to appeal to a Division Bench of the High Court of Bombay. jurisdiction, or There was clearly an inconsistency between s. 22A of Saurashtra Ordinance 2 of 1948, and cl. 15 of the Letters Patent of tbe High Court of Bombay. By virtue of s. 22A(2) appeal lay to a Division Bench of the Saurashtra High Court from a judgment of one Judge "in respect of a decree or order made in exercise of Appellate Jurisdiction when the Judge who made the decree or order certified ~hat.the case is a fit one for appeal". The Legislature made no d1stmct10n between a first appeal, a second app~~l, an ~pl'.ea~ f~om order 11nd an application in exercise of rev1s10nal 1unsd1ct1011 But an appeal under cl. 15 of the HO SUPJlEME COURT REPORTS [1970] 2 S.C.R. Letters Patent of the High Court of Bombay in an appeal from the judgment of the Court of First Instance could be filed without a certificate of the Judge hearing the appeal. In Colonial Sugar Refining Company v. The right to appeal from a decree or order is a substantive right. As a corollary thereto, the right to maintain a decree of a Court without interference by a superior Coart and subject only to the limitation therein is also a vested right and may be taken away by express enactment or clear implication of the amending Irving(') the statute. .TuJicial Committee held that a provision which deprives a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right does not regulate procedure. The Australian Commonwealth Judiciary Act, 1903, came into force on August 25, 1903. Against the. judgment of the Supreme Court of Queensland in an action commenced on Oct. 25, 190'.:'. an application was made jar leave to appeal to the Judicial Com mittee and J~ave was granted on September i, 1903. At the hearing of the appeal by the Judicial Committee the rc:wondenb applied that the appeal from the judgment of the Supreme Court of Queensland be dismissed on the ground that the power of th" Court below to give leave to appeal stood abrogated by s. 39 or the Australian Commonwealth Judiciary Act, 1903. The :;ppli cation was rej~cted by the Judicial Committee. Lord Macnaghten obocrved: ·'As regards the general principles applicable lO ;he case there was no controv~rsy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition (to dismiss) is well founded. On the other hand, if it be more than a matter of pro cedure, if .it. touches ~ right in existence at the passing of the Judrcrnry Act, 11 was conceded that in accordanc" with a long line of authorities from the time of Lord Coke to the l_lresent day the appellanls (the Sugar Co.) would be entllled to succeed. The Judiciarv Act is n0t enact111ent or bY nccessarv retrospective by express intendment. And therefore. tlic only question ic.. WJ·, the appeal to His Majesty in Council a right vested in the appellants at the date oi the passing of the Act, or was it a mere matter of pro(;eclure 9 Lordships that the question does not admit of doubt. To dcrrive a suitor in. a pending action of an appeal to a mpcnor tnbunal which belonged to him as of right is a \'cry different thing from regulating procedure"." It seems to · · - --- ---- (!\ [1905] A.C. J69. A B c D I~ G II D, N, RAJA V. L. A. N, JAMAL (Shah, J.) H l A 8 c D E F ln Garikapatti Veeraya v. N. Subbiah Choudhury('), this Court ac<:cpted the principle in Colonial Sugar [{e{ining Company'; In the absence of any provision to the contrary, there case('). fore, a right attached to the action when it was commeuced 1951, that an appeal against the decision of a single Judge of the High Court of Saurashtra shall lie only if the Judge deciding the case certificJ the case to be a fit one for appe,1!. But the Saurashtra High Court was abolished from November 1, 1956 and the juris diction of the Saurashtra High Court was conferred upon the Bom bay High Court. The case was tried by Vyas, J., not as a Judge of the Saurashtra High Court but as a Judge of the High Court of Bombay. In terms the restriction placed by s. 22A applies to a judgment of one of the Judges of the High Court c1 Saurashtra : it does not apply to a judgment of a Judge of the High Court of Bombay. Once the Saurashtra Ordinance 2 of 1948 was repealed aud the jurisdiction to try the appeal was conferred upon the High Court of Bombay, the right of appeal exercisable by the parties to the litigation decided by the High Court of Bombay was governed by the Letters Patent of that court nad not by s. 22A of the Sau rashtra Ordinance 2 of 1948. Granting that the incident prescribed by s. 22A continued to 'attach to the action, in terms s. 22A of the Saurru.htra Ordinance could not operate to restrict a right of appeal exercisable by cl. 15 of the Letters Patent gover~ing the judgments of the Judges o~ the High Court of Bombay. The expression "Judge of the High Court" in s. 22A of the ordinance for purpose of giving effect to the rule in Colonial Sugar Refining Company's case(') cannot be read as meaning 'a Judge of High Court of Bombay. By implication of repeal by the Saurashtra (Adaptation of Laws on Union subjects) Order, 1957, promulgated by the Central Government and by the application of cl. 15 of the Letters Patent of the Bombay High Court, the judgment of Vyas, J.,. was subject to appeal to a Divi- sion Bench without an order of the Learned Judg~ certifying the ea&e to be fit for appeal. the clearest · In support ofhis submission counsel for the respondents relied upon the terms of s. 52 of the States Reorganisation Act, l 956. But that section only confers .uJ?On the High Court of Bombay aftcer November l, 1956 the ongmal, appellate and other jurisdic tion, which was exercisa)>)e by the High Court of Saurnshtra illll_llcdi~te~y prior to November 1, 1956, in respect.of the tcrri tones w1thm the State of Saurashtra. The section does not incor porate either expressly or by im~lication the limitations prescribed bys. 22A(2) of Saurashtra Ordmance 2 of 1948 into the Letters Patent .of the High Court of Borr.bay. The jurisdiction-original appel!ate a~d other-~hich the High Court of Saurashtra could exercise pnor to November 1, 1956, survived to the High Court G H (~) (19,7] l.C.1'. 4i8. (21 •<>0,~1 A.C. ~6". SUPREME COURT REPORTS [1970) 2 S.C.R. of Bombay in res.11ect of the territories of the State o~ Saurashtra, and the appeal filed by the respondent before the HIS!1 <:ourt. of Saurru.htra was triable in the exercise of the appellate 1unsd1ction of the High Court of Bombay, after the case stood transferred t.o ·that Court by virtue of sub-s. (3) of s. 59 of the ~tates Reorgani zation Act, 1956. Vyas, J., functioned as a Judge of the High Court of Bombay and his judgments in first appeals were, in the absence of an express provision to the contrary, subject to appeal under cl. 15 of the Letters Patent to a Division Bench without a certifi~ate. The High Court of Gujarat was right in holding that in respect of the areas of the fonner Saurashtra State, the High Court of Bombay acquired the same jurisdiction which the High Court of Saurashtra possessed. That however, does not mean that the jurisdiction was to be regulated "with reference to the law which was in force on the appointed day i.e. November 1, 1956". Sec tion 52 of the States Reorganisation Act preserved the original, appellate and oiher .iurisdiction as under the law in force diately before the appointed day exercisable in respect of territories within the State of Saurashtra. Unless in the exercise of that jurisdiction any restriction under t.he law then in force was by express provision or by clear implication preserved, the provi sions of cl. 15 of the Letters Patent must apply. It is necessary to recall the provisions of s. 57 of the States Reorganisation Act, 1956, which proviC:e that the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and division courts of the High Court fer the corresponding State and with respect to matters ancillary io the exercise of the powers shall, with the necessary modification, apply in relation to the High Court for a new State. Im~ediately before N~vember 1, 1956, Dgainst the judgment of a smgle Judge of the High Court of Bombay exercising power in a first appeal, an appeal lay to a Division Bench without a certificate. The po~er of a. Division Bench to entertain an appeal continued to remam exercisable by the Judges of the Bombay High Court w~en dealing with cases tr!lnsferred under s. 59(3) to the Bombay H1g~ Court from the Saurashtra High Court. s. 57 prov1de5 that p_owers of ~e Division Bene)! of the High Court for the correspondmg State 1.e. the new State of Bombay shall be the ~ame ~ ~e powers of the J?ivision Bench under the law in force 1mmed1ate1y before the appomted day in the State of Bombay A Divisio;11 Bench of the .High Court of B9mbay was compete~t to entenam an appeal agamst the judgment of a single Judge deciding a fi~t appeal from the decision of a subordinate court without a ' certificate of the fodge deciding the appeal. In terms A B c D E F G H D. N. RAJA V. L. A. N. JAMAL (Shah, J.) 443 A B The High Court of Gujarat have made a distinction between "power" and "jurisdiction",. and they ~ave held that when ~· 52 of the States Reorganisation Act, 195!>, enacts that the appellate jurisdiction of the Hi&h Court of Bombay for the new State of Bombay shall in relation to the Saurashtra area be the ~~~e as the jurisdiction which the Saurashtra High Court pos~es.se~, 1.t is m~nt that the High Court of Bombay has the same 1unsd1ct10n winch the High Court of Saurashtra originaily had, and in exercise of that jurisdiction is subject to the same limitations which the High Court of Saurashtra was subject. We are unable to agree with that view. Section 52 of the States Reorganization Act, 1956, does not say so, and s. 57 of that Act provides to the contrary. c The High Court of Gujarat was also of the view that s. 52 of the States Reorganisation Act, 1956 "crystalizes the law" only with respect to the territorial jurisdiction of each of the areas comprised in the High Court of Bombay, and if the Legislature extended the jurisdiction of the High Court of Bombay and also D · retained the jurisdiction which the abolished High Court possess ed, the result would be "odd and confiicting"-there being conflict of jurisdiction. But that, in our judgment, is a ground for holding that the jurisdiction of the Bombay High Court superseded in case of conflict, the restrictions on the exercise of jurisdiction by the original High Court qua the Saurashtra territory, and not that the jurisdiction of the High Court of Bombay was because of some unexpressed limitation restricted. E The High Court of Gujarat recognised that the conclusion to which they had reached revealed a defect in the administration of justice. They observed : F G H "The Legislatune may have had a good reason for preserving in tact the old jurisdiction of the Saurashtra High Court in regard to pending cases. However, our conclusion affects cases instituted after the Reorganisa In our judgment, there is no tion Act ca!!le into force. reason why the litigants from the Saurashtra and Kutch area~ ~hould. now be treated on a different footing from In our judgment, the h~gants m the old Bombay area. the nghts of appeal of litigants in all the areas should now be placed on the same footing. We would recom mend to the authorities concerned qu~tio~ and, if so advised, to undertake the necessary leg1slation so as to confer the same rights of appeal to the litigants from the Saurashtra & Kutch areas as are giv~n to the litigants from the rest of the State of Guiarat." to examine 444 SUPREME COURT REPORTS [1970] 2 S.C.R. In our view the conclusion that the restriction on the "old juris- A diction of the Saurashtra High Court" iri regard to pending ca~es was preserved by s. 52 is erroneous. The States Reorganisation Act, 1956 does not purport to preserve the restrictions upon the exercise of jurisdiction, and no implication arises from the use of the expression "original, appellate and other jurisdiction as under the law in force immediately before the appointed day", that the B limitations upon the exercise of the jurisdiction which were existing prior to November 1, 1956, notwithstanding the provi fions of s. 57 of the States Reorganisation Act were preserved. The order passed by the High Court of Gujarat is set aside. and the case is remanded to the High Court to be re-entered under the origin:.! number and to be heard and disposed of according C to law. Costs will be costs in the High Court. • V.P.S. A ppea/ allowed and case remanded.