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PETITIONER: GANPAT RAI HIRALAL AND ANOTHER

       Vs.

RESPONDENT: AGGARWAL CHAMBER OF COMMERCE LTD.MURARI LAL HARI RAMV.MARWAR

DATE OF JUDGMENT: 24/10/1952

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H.

CITATION:  1952 AIR  409            1953 SCR  752  CITATOR INFO :  E          1957 SC 540  (21)  R          1963 SC 221  (8)

ACT: Pepsu Ordinance (X of 2005), ss. 52,116-Patiala States Judi- cature  Farman,  1999--Appeal from order  of  single  Judge- Certificate  of  fitness-When  necessary-Order  made  before Ordinance came into force-Petition for amendment thereafter- Appeal   from   order   dismissing   petition-Necessity   of certificate-Right  of appeal--Vested right-Effect of  change of law.

HEADNOTE:    Section 116 of the Pepsu Ordinance X of 2005  (1948-1949) is  a transitory regulation providing for a change  over  of proceedings ’from one set of courts in the covenanting State to  others  of  like  status in the  Union,  and  for  their continuance  etc.  in the latter courts.  It does  not  mean that  the  proceedings  must be treated  as  having  freshly commenced.   What is contemplated in the latter part of  the section  is a notional commencement, and the  section  means that all rights which arose or are likely to arise in future shall  remain intact not with standing the new set  Lip  and that  they would be dealt with by the Union courts in  place of the courts of the covenanting State.  There is nothing in the  section to justify the view that any taking away  of  a vested right of appeal retrospectively was intended.   Under  the  Patiala  States Judicature Farman  of  1999  a certificate was necessary for an appeal to a Division  Bench from  an order of a single Judge of the Patiala  High  Court only in respect of judgments and orders made in the exercise of civil appellate jurisdiction.  Under the Pepsu  Ordinance X  of  2005  (1948-49) a certificate was  necessary  in  all cases.   In  Appeal  No.  152 an  application  made  on  2nd February,  1950,  for  amendment  of  an  order  made  by  a Liquidation  Judge in 1946 was dismissed and an appeal  from the order of dismissal to a Division Bench was dismissed  on 1st  May, 1950, for want of a certificate.  In appeals  Nos. 167  and  167A,  the payment orders were made  on  the  18th January, 1949, and appeals from those orders were  dismissed on 3rd March, 1949, for want of a certificate:

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 Held,  (i)  that  as a petition for amendment  was  not  a continuation  of  the  earlier proceedings but  was  in  the nature of an 753 independent  proceeding  though  connected  with  the  order sought to be amended, it was governed by the law  prevailing on its date, viz., the Pepsu Ordinance of 2005 under which a certificate  was,  necessary,  and in  Appeal  No.  152  the dismissal of the appeal to the Division Bench for want of  a certificate was right;   (ii)that with regard to Appeals Nos. 167 and 167-A, as the law  in force on the relevant dates was the  Patiala  States Judicature  Farman  of 1999 the appellants had  a  right  to appeal  from the payment order without a  certificate;  this vested right could not be taken away by a subsequent  change in  the  law  unless the later  enactment  expressly  or  by necessary  implication  was retrospective in  operation  and deprived them of such a right, that there was nothing in  s. 116  of the Ordinance to show that it was intended  to  have retrospective  effect  and  the  order  of  the  High  Court dismissing  the  appeals  as  incompetent  was,   therefore, erroneous.   Colonial Sugar Refining Company v. Irving [1905] A.C.  369 referred to.

JUDGMENT:   CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 152, 167 and  167-A of 1951.  Appeal from the Judgments  dated  April 25,  and  May 1, 1950, of the High Court of  Judicature  for Patiala and East Punjab States Union at Patiala (Teja  Singh C. J. and Chopra J.) in T. P. A. R. I. A. O. No. 34 of  1950 and Civil Appeals Nos. 493/494 of Samwat 2005.    Rang  Behari  Lal (Ram Nivas Sanghi, with him)  for  the appellants in Civil Appeals Nos. 167 and 167-A. Udai  Bhan Chaudhuri for the appellant in Civil  Appeal  No. 152.  Lachhman  Das Kaushal for the respondent in Civil  Appeals Nos. 167 and 167-A.    Ram Nivas Sanghi for the respondent in Civil Appeal  No. 152.  1952.   October  24.   The  Judgment  of  the  Court   was delivered by CHANDRASEKHARA  AIYAR  J.-These appeals  are  connected  and raise  a  common question of law.  They come  before  us  on special  leave  granted by the Pepsu High Court  at  Patiala under sub-clause (e) of clause (1) of  article  133  of  the Constitution, 754 The facts in Civil Appeal No. 152 of 1951 are different from those  in  the other two appeals, and the  consequences  are different also. The  proceedings  arise  out  of  the  liquidation  of   two companies  called the Marwari Chamber of Commerce Ltd.,  (in Civil  Appeal No. 152 of 1951) and the Aggarwal  Chamber  of Commerce  Ltd.,  (in the other two appeals).   The  Official Liquidator  settled  the list of contributories,  and  after various steps taken before the Liquidation Judge of the High Court  by way of objection on grounds of law as well  as  on merits,  there  were payment orders on 4th  June,  1946,  in Civil  Appeal No. 152 of 1951 and on 18th January, 1949,  in the latter two appeals.   The correctness and the validity of the payment order  in Civil Appeal No. 152 of 1951 was challenged in appeals taken

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to  the  High  Court  by the  Official  Liquidator  and  the contributory.   The  order  of  the  Liquidation  Judge  was modified  in favour of the Liquidator, and as against a  sum of Rs. 4,762-13-3 ordered to be paid, there was an order for the  payment  of Rs. 24,005-7-3.  On further appeal  by  the contributory to the Judicial Committee, it was held that the appeal  to  the  Division  Bench was  barred  by  time,  and consequently  the judgment of the Bench was set  aside,  and that  of  the Liquidation Judge restored.  This was  on  6th December, 1949. In the other two appeals, an application for removal of  the name  of  the contributory was granted  by  the  Liquidation Judge,  but  on appeal a Division Bench of  the  High  Court reversed  this  order.   On  further  appeal  taken  by  the company, the Judicial Committee, Patiala, remanded the  case for  retrial,  and the Liquidation Judge made an  order  for payment   of  Rs.  8,191-0-9  on  18th  January,  1949,   as aforesaid.  On  2nd  February,  1950, the firm  Murari  Lal-Hari  Ram, appellant  in  Civil  Appeal  No.  152  of  1951,  filed  an application  under  section 152, Civil Procedure  Code,  for amendment  of  the order of the  Liquidation  judge,  Kartar Singh J., alleging that there was a 756 clerical  or arithmetical error arising from  an  accidental slip  or omission in that a sum of Rs. 24,005-7-3 was  taken as  due  by the firm instead of the correct  figure  of  Rs. 21,805-7-3.   This application was dismissed by the  learned Judge  on 16th March, 1950.  The firm applied to him  for  a certificate  for  leave  to  appeal,  but  this  again   was dismissed.    An  appeal  was  preferred  from   the   order dismissing the amendment petition, but it was thrown out  on the  ground of want of a certificate from the Single  Judge. This order is dated 1st May, 1950, and is couched in  these, terms  "  We have recently held in Ganpat Rai  Hira  Lal  v. Aggarwal Chamber of Commerce, Ltd., L.P.A. Nos. 493 and  494 of Samvat 2005 (Pepsu) that no appeal lies from an order  of a Single Bench to a Division Bench without a certificate  by the  Single  Judge that the case is a fit  one  for  further appeal.   In  this case it is admitted that  the  appellants made  an application for a certificate to the Single  Bench, from  whose  decision  he is appealing,  but  the  same  was refused.   The  appeal is. therefore not  competent  and  is dismissed in limine."  The reference in the order to the case of Ganpat Rai  Hira Lal  v. Aggarwal Chamber of Commerce Ltd., L.P. A. Nos.  493 and  494 of Samvat 2005 (Pepsu) is to the order made by  the High  Court in the connected matter which has given rise  to the  two  Appeals  Nos. 167 and 167-A of  1951.   There,  an appeal was lodged from the payment order of the  Liquidation Judge, but it was dismissed on the same ground, namely, want of a certificate from the Single Judge.  In  Civil  Appeal No. 152 of 1951, the  argument  for  the appellant  is that no certificate front the Single Judge  is necessary,  as the matter is governed not by Ordinance X  of 2005  of  the  Patiala  State  but  by  the  Patiala  States Judicature  Farman  Shahi,  1999  Bikarmi,  under  which  no certificate is necessary.  It is true that under section  44 of  the earlier Farman a certificate that the case is a  fit one for appeal is required only if the judgment, decree,  or order sought to be appealed is wade in the exercise of civil 98 756 appellate  jurisdiction.  It is, however, clear that we  are not  governed by this provision.  The amendment  application

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was  made  on  2nd February, 1950, as  stated  already.   No appeal  is provided under the Civil Procedure Code  from  an order  amending or refusing to amend a judgment,  decree  or order, though an appeal would lie from the amended decree or order.  There is no warrant for the view that the  amendment petition  is  a  continuation of  the  suit  or  proceedings therein.  It is in the nature of an independent  proceeding, though  connected  with  the order  of  which  amendment  is sought.  Such a proceeding is governed by the law prevailing on  its  date, which admittedly is Pepsu.   Ordinance  X  of 2005,  and which provides in section 52 for  a  certificate. The section is in the following terms:  "  Subject to any other provision of law, an appeal  shall lie  to the High Court from a judgment, decree or  order  of one  Judge of the High Court and shall be heard by  a  Bench consisting of two Judges of the High Court: Provided that no such appeal shall lie to the High Court unless the Judge who decides  the  case  or  in his  absence  the  Chief  Justice certifies that the case is a fit one for appeal...."  So  far  as the appellant firm is concerned, there  is  no question of any right of appeal vested in it which is sought to  be  taken  away by giving retrospective  effect  to  the Ordinance which came into force in August, 1948.  The  order of the High Court holding that no appeal lies from an  order of a single Judge without a certificate by him that the case is a fit one for appeal, is, in our opinion, right.  In  the  other two Appeals Nos. 167 and 167  A,  of  1951, different considerations come into play.  The payment  order of the Liquidation Judge was on 18th January, 1949, and  the appeal  was  preferred  on  19th  February,  1949.   In  the meantime,  as  there  was some doubt on  the  question,  the appellants took the precaution of applying to the Judge  for a  certificate, but this was dismissed on 3rd  March,  1949. On the relevant dates, the Patiala States Judicature Farman, 1999, was in force, and the appellants hood a, right of 757 appeal  from the payment order without a  certificates  They could  not be deprived of this right by a subsequent  change in the law, unless the later enactment provides expressly or by  necessary  implication for  retrospective  effect  being given.   The learned Judges of the High Court conceded  this in  their  order,  but they thought  ’that  section  116  of Ordinance X of 2005 (1948-49) contained an express provision to the contrary.  The section is in these terms:  Notwithstanding anything contained in this Ordinance,  all suits, appeals, revisions, applications, reviews, executions and  other  proceedings, or any of them,  whether  civil  or criminal,   pending  in  the  Courts  and  before   judicial authorities in any Covenanting State shall be continued  and concluded   respectively  in  Courts  or   before   judicial authorities of the like status in the Union ; and the Courts or authorities in the Union shall have the same jurisdiction in respect, of all such suits, appeals, revisions,  reviews, executions,  applications and other proceedings, or  any  of them,  as if the same had been duly commenced and  continued in such Courts or before such authorities."   It  is fairly obvious that this is a  transitory  regula- tion,  providing for a change over of proceedings  from  one set  of  Courts in the Covenanting State to others  of  like status  in the Union and for their continuance etc.  in  the latter Courts.  It does not say that the proceedings must be treated  as having freshly commenced.  What is  contemplated in   the   latter  part  of  the  section  is   a   notional commencement,  if  such a term could be used.   The  section obviously means that all rights which arose or are likely to

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arise in the future shall remain intact notwithstanding  the new  set-up, and that they would be dealt with by the  Union Courts  in  place of the Courts of  the  Covenanting  State. There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively  was intended.   The decision in Colonial Sugar Refining  Co.  v. Irving(1) clearly applies to the facts, and the order of the High Court that (1)  [1905] A.C. 369. 758 the appeals are not competent is, in our opinion, erroneous.  The  result  is that Appeal No. 152 of 1951  is  dismissed with  costs throughout, while Appeals Nos. 167 and  167A  of 1951 are allowed with costs throughout.                                  Appeal No. 125 dismissed.   Appeals Nos. 167 and 167A allowed. Agents  for  the appellants in Appeals Nos.  167  and  167A: Mohan Behari Lal. Agent for the appellant in Appeal No. 152: Kundan Lal Mehta. Agent  for respondents in Appeals Nos. 167 and 167A:  Naunit Lal. Agent for respondent in Appeal No. 152: Mohan Behari Lal.