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PETITIONER: P.   MOHAMMED MEERA LEBBAI

       Vs.

RESPONDENT: THIRUMALAYA GOUNDER RAMASWAMY GOUNDER AND OTHERS

DATE OF JUDGMENT: 23/08/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. BACHAWAT, R.S.

CITATION:  1966 AIR  430            1966 SCR  (1) 574

ACT: Kerala High Court Act 1958 (5 of 1959), s. 5-Jurisdiction of Single  Judge to hear appeals raised from Rs,.  1,000  under earlier law to Rs. 10,000 -Appeal valued at Rs. 3,000  filed before,  but heard after, change of law  -Appellant  whether can claim to be heard by Division Bench.

HEADNOTE: The appellant’s suit for recovery of possession of  property and mesne profits filed in 1950 was substantially decreed by the  trial  court.  The appellant however  filed  an  appeal before the Kerala High Court against the decree in so far as it went against him.  The appeal was heard in 1960 after the Kerala  High Court Act 5 of 1959 had been passed  and  under its provisions the appeal was heard by a single judge.  When the  appellant had filed his suit, and later on his  appeal, the  Travancore-Cochin High Court Act of 1949 was  in  force and  under  that Act the appeal would have been heard  by  a Division  Bench.   On the judgment of the High  Court  going against  him  the  appellant came to the  Supreme  Court  by special leave.  It was contended on his behalf on the  basis of  kadhakrishan’s case that the Kerala High Court Act 5  of 1959  could  not retrospectively take away his right  to  be heard by a Division Bench, which he had under the law as  it stood when he filed his suit and appeal.  Reliance was  also placed on Grikapati Veeraya’s case for the proposition  that the  institution of a 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. HELD  :  No  party  has a vested right  to  be  heard  by  a specified  number  of judges.   The  Travancore-Cochin  High Court Act of 1949 did not confer any right of appeal on  the appellant  which has been taken away by the later  Act.   It only provided for procedural matters which are dealt with by several  High  Courts under the Letters  Patent.   The  con- tentions   based  on  Radhakrishan’s  case  and   Garikapati Veeraya’s case must therefore be rejected. [578 B-G] Radhakrishan v. Shridhar, I.L.R. 1950 Nag. 532, disapproved. Mahendra  v.  Darsan,  I.L.R. 31  Pat.  446  and  Garikapati Veeraya v. N.  Subbaiah   Choudhury,  [1957]   S.C.R.   488, referred to.

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Ittavlra Mathai v. Varkey Varkey & Anr. [1964] 1 S.C.R. 495, followed.  It  could not also be said that by depriving the  appellant of  the right to have his appeal heard by a  Division  Bench his further right of appeal to this Court under Art. 133 had been  affected.  Once it is held that no party has a  vested right to have his appeal 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 said right being unavailable  in a  ease heard and disposed of by a single Judge of the  High Court. [579 A-B]

JUDGMENT: APPELLATE JURISDICTION Civil Appeal No. 383 of 1963.  575 Appeal  by special leave from the judgment and decree  dated August  10,  1960 of the Kerala High Court in  Appeals  Suit Nos. 577 and 751 of 1958 and 40 of 1959. T.   N.  Subramania  lyer,  M.  S.  K.  Sastri  and  M.   S. Narasimhan, for the appellant. A.   V.  Viswanatha  Sastri,  S.  N.  Amjad  Nainar  and  R. Thiagarajan, for respondent No. 1. M. R. K. Pillai, for respondents Nos. 4 and 5. 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 whether the appeal  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 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.  136  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 -rave 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 him 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  was instituted  on  February 10, 1950 in the district  court  of Kottayam  which was later transferred by it to the 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 576 appeal against that part 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

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preferred.  by defendants I and 8 were allowed by  the  High Court  while  the  appeal preferred  by  the  appellant  was dismissed.   At  the  time  the  suit  was  instituted   the Travancore-Cochin   High   Court   Act  5   of   1125   M.E. (Corresponding  to 1949 A.D.) was in force.  Under s. 20  of that  Act  read  with S. 21 all appeals to  the  High  Court valued  at an amount in excess of Rs. 1,000 had to be  heard by  a  Division Bench consisting of two Judges of  the  High Court.   T he appellant’s suit and the appeals taken by  the respondents  from  the District Court  and  the  Subordinate Judge were both valued at Rs. 3,000 and, therefore, had  ss. 20 and 21 of the Act been in force on the date on which  the appeals  were instituted unquestionably they would have  had to  be  beard  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 the President on February 6, 1959 and  came  into force on March 3, 1959.  The appeals were placed for hearing before a single Judge overruling, we are informed by learned counsel, the appellant’s plea that they should be only heard by a Division Bench.  The reason why the appeals were  heard by a single Judge and not Placed before a Division Bench was that  under s. 5 of the Kerala High Court Act 5 of 1959  the jurisdiction of a single Judge of the High Court to hear and dispose of appeals from an original- decree was extended  to appeals  in  which the value of the subject matter  did  not exceed Rs. 10,000.  According, to learned counsel the  right to have the an-peals heard by a Division Bench conferred  by the Travancore-Cochin High Court Act which was in force  not only when the suit but also when the appeals were filed, was not  taken away expressly by Kerala Act 5 of 1959 and  could not  be  taken  away  by implication.   In  support  of  his contention  he placed strong reliance upon the  decision  in Radhakrishan v. Shridhar(1).  In that case, just -,is  here, the  jurisdiction of a single Judge to hear an appeal  of  a value  over  Rs.  2,000 was challenged, even  though  by  an amendment  to  an  earlier rule made by the  High  Court  in exercise of its power under el. 26 of the Letters Patent  on May  27,  1948  all appeals from an appellate  decree  of  a District Court were to be ordinarily heard and disposed  of- by a single Judge.  A contention was raised on behalf of the appellant’s counsel in that case that in the absence of  any express provision rendering the amendment retrospective  the amendment did not touch the right of an appellant which bad (1)  I.L.R. [1950] Nag. 532.  577 accrued  to  him  earlier  to have his  appeal  heard  by  a Division  Bench.   The  contention was upheld  by  the  High Court.   This  decision was not approved of in  Mahendra  v. Darsan(1) 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(2) in  which the following propositions were laid down :               "(1) 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

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             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 dater the lis 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 law 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  be-en 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  case  it is traceable  to  the  provisions  of Travancore- (1) I.L.R. 31 Patna 446. (2) [1957] S.C.R. 488 578 Cochin  High  Court Act of 1949.  That Act as  its  preamble shows  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  does  not confer  any right of appeal though it divides  civil  courts into    four   classes   and   defines   their    respective jurisdictions. An  objection  somewhat  similar to the one  raised  by  the appellant before us was raised before this Court in Ittavira Mathai v. Varkey Varkey & another(1).  Dealing with it  this Court has 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 judges 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 was 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  as  to               any   provision  of  the   Constitution,   the

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             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  this               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. (2) Learned  counsel, however, contended that by de-Driving  the appellant  of  the  right  to have his  appeal  heard  by  a Division  Bench  his further right of appeal to  this  Court under  Art. 133 was affected and that since that right  also vested in him when he instituted (1)[1964] 1 S.C.R. 495   (2) I.L.R. (1950) Nag. 532.  579 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  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. 580