P. Mohammed Meera Lebbai v. Thirumalaya Gounder Ramaswamy Gounder and Others

Judgment

The Judgment of the Court was delivered by Mudholkar, J. This is an appeal from a judgment of a single Judge of the Kerala High Court dismissing the appellant's suit for recovery of possession of certain property and for mesne profits. It is not disputed that the only question of law which arises in this appeal is wheither the apeal could be heard and disposed of by a single Judge of the High Court. The other questions raised are purely questions of fact. Article 133, cl. (3) of the Constitution clearly provides that notwithstanding anything in the article no appeal shall lie to the Supreme Court from a judgment, decree or final order of one Judge of a High Court unless Parliament by law otherwise provides. Parliament has passed no law rendering 'It the judgment of a single Judge appealable to the Supreme Court. Though this provision does not detract from the power of this Court under Art. 13 6 to entertain an appeal from a decision of a single Judge, it is the settled practice of this Court not to interfere with a finding of fact arrived at by the High Court unless it is satisfied that in arriving at the finding of fact the High Court had been guilty of grave errors.

We gave opportunity to learned counsel to point out to us if the findings arrived at by the learned single Judge of the High Court are vitiated by any grave errors. But he was unable to point out any. We, therefore, declined to permit rum to address us on the findings of fact. As regards the question of law it is desirable to set out how, according to the appellant, it arises. The suit W!lS instituted on February 10, 1950 in the district court of Kottayam which was later transferred by it to !he court of the Subordinate Judge, Meenachil sometime in the year 1956 and was substantially decreed in the appellant's favour on July 30, 1958. Three appeals were preferred against it. One was by Tirumalaya Gounder, the first defendant, and another in January, 1959 by H. B. Mohammad Rowther, 8th defendant. The appellant had also preferred an SUPIU!Ml! COURT REPORTS (1966] l S.C.R. appeal against that pan of the decree which was adverse to him.

All these appeals were heard together and disposed of by a common judgment on August 10, 1960 and the appeals preferred. by defendants I and 8 w~re allowed by the High Court while the appeal preferred by the anpellant was dismissed. At the time the suit w:i.s institu:ed th~ Travancore-Cochin Hi:YJ Court Act 5 of 1125 M.E. (Corresronding to 19-t9 A.D.) wa> in force. Under s. 20 of that Act read with s. 21 all appeals to the High Court valued at ao amount in excess of Rs. 1,000 had to be heard by a Divisio:i Bench conshting of two Judges of the High Court. The appellanfs suit and the appeals taken by the respondents from the District Court and the Subordinate Judge were both valued at Rs. 3,000 and, there.fore, had ~s. 20 and 21 of the Act been io force on the date on which the appeals were instituted unque.stionably they would have had to be heard by a Division Bench of two Judges. The aforesaid Act was, however, repealed by the Kerala High Court Act, 1958 being Act No. 5 of 1959 which received the assent of th,1 President on February 6.

1959 and came into force on March 3, 1959. The ao::>eals were '.'laced for hearing before a single Judge overruling, we are informed by learned couwel. the apr>ellant's pica that they should be only heard by a Divi<,ion Rench. The rC~!·on why th" ao;ieals w~rn heard by a single .Jud!!e and not placed b~fore a Division Bench was that un<.lcr s. 5 of the Kerala High Court Act 5 of 1959 the E jurisdiction of a sin:;le Judc,c of the High Court to h··ar and rlispose of a•:meals Crom an original decree was extended to ar>;ieals in which the value of the subject matter did 'lot exceed Rs. 10.000. According to learned coun'd the ri~ht to have the armeals heard by a Division Bench conferred by -the Travancor<.'-Cochin High Court Act which was in force not only when the suit but also when the appeals were filed, was not taken away cxnresslv h;· Kernla Act 5 of 1959 and coulcl not be tal:.1n awa,· by imnlication.

In supriort of his contention he placed stron~ reliance uoon the decision in Radhakishan v. Shridhar('). In that case. just as here, the jurisdiction of a single Judge to hear an anpcal of a value over Rs. 2,000 was chal'.enged, even though hy an amendment to an earlier rule made bv the Hi'!h Court in exercise of its powe,r under cl. 26 of the Letters Par~;{t on May 27, 1948 all appeals from an appellate decree of a District Court were to be ordinarily heard and disnosed of by a 'inoJc Judt~c. A contcnrion w"s raised on behalf of the appeJlant's counsel in th~t case that in the absence of any express provisinn re'Jcering the amendment retrospective the amendment did not touch the right of an ap;ir.llant which had (J) l.L.R. 1195.-J Nag. 53!. II 1 MOHAMMED MEERA v. THIRUMALAYA (Mudholkar, J.) accrued to him earlier to have his appeal heard by a Division Bench. The contention was upheld by the High Court. Thi~ decision was not approved of in Mahendra v. Darsan(') on the ground that the right of a party to have an appeal heard by a Division Bench was merely a matter of procedure and could, therefore, be taken away retrospectively by implication.

Learned counsel for the appellant also placed reliance upon a decision of this Court in Garikapati Veerara v. N. Subbaiah Choudhury(') in which the following propositions were laid down : "(l) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. ( 2) The right of appeal is not a mere matter of procedure but is a substantive right. ( 3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. ( 4)

The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the datei the Us commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the Jaw that prevails at the date of its decision or at the date of the filing of the appeal. ( 5) This 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." and learned counsel particularly laid stress on the third proposition. We are in respectful agreement with what has been laid down by this Court. But it is difficult to appreciate what benefit the appellant can obtain from what has been laid down by this Court. For, this is not a case where any right of appeal conferred by law upon the appellant has been taken away.

The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of s. 96 of the Code of Civil Procedure. The learned counsel, however, contended that in the instant ca~e it is traceable to the provisions of Travancort>- (1) J.L.R. 31 Patna 446. (2) [1957] S.C.R. 488. SUPllEMI! COUllT RBPOR TS [I %oJ I S.CR Cochin High Coun Act of 1949. That Act as its preamble show~ was enacted for making provision regulating the business of the High Court of Travancore-Cochin for fixing the jurisdiction of single Judges, Division Benches and Full Benches and for certain other matters connected with the functions of the High Court. It did not purport to confer a right of appeal on the parties, but merely dealt with procedural matters, matters which are dealt with by several High Courts under the Letters Patent.

Even the· Travancore-Cochin Civil Courts Act, 1951 the provisions of which relate to civil courts subordinate to the High Court docs not confer any right of appeal though it divides civil courts into four cla.o;.<re6 and defines their respective jurisdictions. An objection somewhat similar to the one raised by the appellant before us wa.s raised before this Court in lttavira Mathai v. Varkey Varkey & another( I). Dealing with it this Court nas observed at p. 514 : "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 judgc.s 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 wa.s in fact heard and disposed 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.

No doubt in certain classes of cases, as for instance, cases which involve an interpretation a.s to any provision of the Constitution, the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of judges who will not be less than five in number. But it does not follow from this that the legal requirements in thi.• regard cannot be altered by a competent body. We, therefore, overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges." In the circumstances, therefore, we must reject the appellant's contention based upon the decision in Radhakishan's case. ( 1) Learned counsel, however, contended that by depriving tho appellant of the right to have his appeal heard by a Division Bench hi6 further right of appeal to this Court under Art. 133 was affect- II od and that since that right also vested in him when he instituted (I) 1!964] I S.C.R. ~95. (2) 1.L.R. (1950) Nag.

532. u MOHAMMED MEERA v. THIRUMALAYA (Mudho/kar, J.) the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents had raised a question as to-the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question.

Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us. For these reasons we dismiss the appeal with costs. Appeal dismissed.