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1951 DIGILAW 8 (MP)

Radhavallabh v. Ramanlal

1951-02-06

SHINDE

body1951
ORDER : 1. This application raises a very interesting point of law. The applicants Radhavallabh and Ramlal filed a suit in the Court of the District Judge, Gwalior for a declaration, removal of the defendant and accounts. One issue in that case was as to whether the suit was cognizable by a civil Court. The District Judge decided that the civil Court had jurisdiction to try the suit. Against that decision a revision was filed in the High Court by the defendant. This Court held on 23-2-1950 that the Court has no jurisdiction to try the suit. Consequently the plaintiff's suit was dismissed. The plaintiff now has filed this application under Section 23, of the Madhya Bharat High Court Act for the grant of certificate to file an appeal against that order. 2. A preliminary objection has been raised by Mr. Shivdayal, who appears on behalf of the non-applicant, that this application cannot be entertained as Section 23 contemplates an application for further appeal only against a decree passed in appeal by a single Judge. Mr. Bhagwandas Gupta who appears for the applicant counters this objection on the ground that the High Court of Judicature Act contemplates only two kinds of jurisdictions, namely, original and appellate and hence revisional jurisdiction must be taken to have been included in the appellate jurisdiction. In support of his argument, he relies on the provisions of Sections 23 and 27 of the Madhya Bharat High Court of Judicature Act. Reliance has also been placed on 'Chappan v. Moidin Kutti', 22 Mad 68. 3. In order to appreciate the argument fully it is necessary to reproduce the relevant provisions of Sections 23 and 27 of the Madhya Bharat High Court of Judicature Act. Section 23 runs as follows; "Save as otherwise provided by any law for the time being in force, an appeal shall lie to the High Court from: (a) a decree or an order appealable under the Code of Civil Procedure or any other law for the time being in force, passed by a District Judge in exercise of his original or appellate civil jurisdiction: (b) a decree or an appealable order passed by a single judge of the High Court in the exercise of his extraordinary or appellate civil jurisdiction. Provided that no appeal shall lie to the High Court from any decree or order passed or made after the commencement of this Ordinance, (sic) by a single judge of the High Court in an appeal from the decree or order of a subordinate Court passed or made in any appeal arising out of any suit, unless the single judge who passed or made the decree or order certifies that the case is a fit one for appeal." Section 27 runs as follows: "The High Court may by its own rules provide for the exercise by a single judge, or by divisional benches consisting of two or more of its judges, of the original and appellate jurisdiction vested in it in such manner as may appear to it to be convenient for the due administration of justice." 4. Mr. Bhagwandas Gupta in his able argument urges that in section 23 (b) and also in section 27 reference has only been made to the extraordinary original and appellate jurisdiction. Hence revisional jurisdiction which is only a special form of appellate jurisdiction is included in the word 'appellate jurisdiction.' Consequently he is entitled to apply for the grant of certificate under Section 23 of the Madhya Bharat High Court of Judicature Act. 5. Mr. Gupta has laid great stress on the decision of the Full Bench of the Madras High Court given in the case of 'Chappan v. Moidin Kutti', 22 Mad 68. In this case the question which was referred to the Full Bench was 'does an appeal lie from an order passed by a single judge of the High Court under Section 622 (revisional power) of the Code of Civil Procedure.' The majority of the judges constituting the Full Bench answered the question in the affirmative. The decision of the question rested on the interpretation of Clause 15 of the Letters Patent. That clause reads as follows: "And we further ordain that an appeal shall lie to the said High Court of Judicature of Madras from the judgment (not being a sentence or order passed or made in any criminal trial) of one judge of the said High Court, or of one judge of any division Court, pursuant to Section 13 of the said recited Act .............................. " In order to understand what kind of judgment was contemplated by Clause 15 of the Letters Patent, 1865 it is necessary to reproduce Section 13 of the High Courts Act, 1861, as well. That section is as follows : "Subject to any laws or regulations which may be made by the Governor-General in Council, the High Court established in any Presidency under this Act may, by its own rules, provide for the exercise, by one or more judges, or by division Courts constituted by two or more judges of the said High Court, of the Original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice." The majority of the judges constituting the Full Bench took the view that as Section 12 is the only section which enables the High Court to frame rules for the exercise of jurisdiction, if revisional jurisdiction is not taken to have been included in the appellate jurisdiction then all revisions will have to be decided by all the judges of the High Court. They, therefore, construed the expression 'appellate jurisdiction' in its generic sense. Subramania Ayyar, J., observed as follows: "Now, according to Webster's Dictionary the first meaning, in law, of the noun, 'appeal' is "the removal of a cause or a suit from an inferior to a superior judge or Court for re-examination or review." The explanation of the term in Wharton's Law Lexicon, which is only different in words, is "the removal of a cause from an inferior to a superior Court for the purpose of testing the soundness of the decision of the inferior Court." And in consonance with this broad meaning of the word, "appellate jurisdiction" mean "the power of a superior Court to review the decision of an inferior Court." Here the two things which are. required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story: "The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. This has been well put by Story: "The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised.' His Lordship further observed: "An appellate jurisdiction as pointed out by Story in the passage immediately following that already quoted, 'may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe." Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by a party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiction is allowed to be exercised. Nor are the conditions, prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to and more commonly imposed by Legislatures on the exercise of appellate functions. But none of such limitations, however much it may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself. Now, as Section 622 in question gives in terms to this Court the power to revise decisions of Courts subordinate to it, it follows that the essential criterion of appellate jurisdiction, enunciated in the above quotation, is present in the case of proceedings held by this Court under that section and that the power exercised in such proceedings is therefore a part of the Court's appellate jurisdiction." 6. In order to fully appreciate the decision in 22 Mad 68, it is necessary to recapitulate the peculiar circumstances with which the full bench was confronted. Clause 15 of the Letters Patent of 1865 provides for an appeal against the judgment of one judge given in exercise of jurisdiction vested in him by the rules framed under Section 13 of the High Courts Act, 1861. Clause 15 of the Letters Patent of 1865 provides for an appeal against the judgment of one judge given in exercise of jurisdiction vested in him by the rules framed under Section 13 of the High Courts Act, 1861. There is no reference to civil revisional jurisdiction either in the High Courts Act or in the Letters Patent, 1865. Section 15 of the High Courts Act gives power of superintendence over all Courts to the High Court. The majority of the judges thought that revisional powers do not form part of the powers of superintendence. In these circumstances the majority of the judges constituting the Full Bench held that the revisional jurisdiction is included in the appellate jurisdiction. 7. Mr. Shivdayal contends that the view taken by their Lordships of the Madras High Court in 22 Mad 68 has not been followed by other High Courts. He has cited several decisions of various High Courts, which I propose to discuss one by one. In 'Hiralal v. Bai Asi', 22 Bom 891 Parsons and Ranade JJ., held that the decision of a single judge in exercise of revisional jurisdiction is not within the scope of clause 15 of the Letters Patent, because Section 13 of the High Courts Act to which Clause 15 refers deals only with original and appellate jurisdiction. The learned judges, however, did not say under what powers a judge sitting singly can dispose of applications in revision. If Section 13 of the High Courts Act does not apply to revisions, then there is no power under the High Courts Act or the Letters Patent which enables a judge sitting singly to dispose of applications in revision. This decision, therefore, is not of much assistance. 'Gauri Dutt v. Parsotam Dass', 15 All 373, is based on the decision given in the case of 'Muhammad Naim-ullah Khan v. Ihsan-ullah Khan', 14 All 226. The reason advanced in 14 All 226 is briefly that the revision lies in a case in which no appeal lies. Hence to hold that an appeal lies against the decision of one judge in exercise of revisional jurisdiction is inconsistent with the intention of the Legislature. The reason advanced in 14 All 226 is briefly that the revision lies in a case in which no appeal lies. Hence to hold that an appeal lies against the decision of one judge in exercise of revisional jurisdiction is inconsistent with the intention of the Legislature. The learned Chief Justice in that case made the following observations: "With regard to orders made in revision under section 622 of the Code of Civil Procedure (Act No. XIV of 1882), it appears to me that, whether chapter XLIII of the Code applies or not, it could not have been contemplated by the Legislature that there should be any appeal against an order made under section 622 of the Code. Section 622 can only be applied by a High Court in cases in which no appeal lies to the High Court. It is a section which has been always treated and always considered, by this Court at any rate, as giving purely discretionary power to the High Court to interfere or not. It was a section which obviously was not intended to create or be the foundation of appeals in cases in which no appeal had lain, and looking at the object of that section and the cases to which that section would apply, that is, cases in which no appeal lay to the High Court, I cannot believe that such an anomaly was intended as would exist if, from the orders passed under section 622 in revision, a party has a right of appeal when no appeal lay in the original case to this Court." This case also does not deal with the question as to how a judge sitting singly derives his power to dispose of applications in revision. Next case cited by the learned counsel for the non - Applicant is 'Nisar Ali v. Ali Ali', 28 All 133. This case is also based on the decision in 'Muhammad Naim-Ullah Khan v. Ihsan-Ullah Khan', 14 All 226, referred to above. 'Sriramulu v. Ramasami', 22 Mad 109, is of very little assistance as it gives no reasons for its decision. 'Raghubans Lal v. Solano', AIR (18) 1931 Pat 292 and 'Sadaka Muhammad v. M. H. Baletia Sahib', AIR(15) 1928 Mad 169, are not relevant to the point at issue as these decisions are based on the amended clause 15 of the Letters Patent, which excludes revisional jurisdiction from its purview. 'Raghubans Lal v. Solano', AIR (18) 1931 Pat 292 and 'Sadaka Muhammad v. M. H. Baletia Sahib', AIR(15) 1928 Mad 169, are not relevant to the point at issue as these decisions are based on the amended clause 15 of the Letters Patent, which excludes revisional jurisdiction from its purview. The result is that the authorities cited by the learned counsel for the non - Applicant do not give cogent reasons to differ from the view taken by their Lordships of the Madras High Court in 22 Mad 68. 8. The position of law under the Madhya Bharat High Court of Judicature Act. S. 2005, however, is quite different. Section 21 of the said Act gives the High Court extra-ordinary jurisdiction. Section 22 of the said Act confers on the High Court appellate and revisional jurisdiction. This section runs as follows: "The High Court shall be the highest Court of appeal and revision in the United State and shall have jurisdiction to entertain and dispose of such appeals, revision and other cases, civil and criminal, as it may be empowered to do under this Act or any enactment in force in the United State." The Madhya Bharat High Court of, Judicature Act, which combines the provisions of both the High Courts Act and the Letters Patent in what used to be British India, clearly empowers the High Court to exercise both appellate and revisional jurisdiction. Directly after this comes section 23 which provides for an appeal against a decree of single judge passed in the exercise of his extraordinary or appellate civil jurisdiction. If, however, the legislature had intended to provide an appeal against the decision of a single judge given in exercise of his revisional jurisdiction, clear provision to that effect would have been made in section 23. Unlike the High Courts Act and the Letters Patent referred to above, the Madhya Bharat High Court, of Judicature Act has clearly conferred revisional jurisdiction on the High Court in section 22. The section that follows directly after, therefore, would not be silent with regard to the revisional jurisdiction if the Legislature had intended to provide an appeal against the decision given in revisional jurisdiction. The proviso to clause (b) of section 23 lends support to this view. The section that follows directly after, therefore, would not be silent with regard to the revisional jurisdiction if the Legislature had intended to provide an appeal against the decision given in revisional jurisdiction. The proviso to clause (b) of section 23 lends support to this view. The proviso clearly mentions that no appeal shall lie from any decree passed by a single judge in an appeal from the decree of a subordinate Court passed in any appeal arising out of any suit unless the single judge certifies that a case is a fit one for appeal. This leaves no doubt whatsoever, in my mind, that an appeal lies under section 23 from only that decree which is passed in exercise of appellate, as distinct from, revisional jurisdiction, by a single judge. There is no reason to include revisions in appeals under the Madhya Bharat High Court of Judicature Act as both appellate and revisional jurisdictions have been separately mentioned. 9. Mr. Gupta referred to section 27 of the Madhya Bharat High Court of Judicature Act. That section no doubt makes a mention of only original and appellate jurisdiction. Mr. Gupta infers from this that revisional jurisdiction is included in the appellate jurisdiction under the Madhya Bharat High Court of Judicature Act. I do not think that such a wide inference can be drawn from the provisions of section 27. It is possible that for the purpose of section 27, revisional jurisdiction might have been included in the appellate jurisdiction. As already pointed out the word 'appeal' in a broad sense can include revisions. However even if it be construed that the revisional jurisdiction is included in the appellate jurisdiction under section 27, it cannot be said that the revisional jurisdiction is included in the appellate jurisdiction in all sections of the Act. Section 27 does not govern Section 23 as section 13 of the High Courts Act, 1861 did clause 15 of the Letters Patent of 1865. Both the sections can be treated to be independent of each other. 10. Section 27 does not govern Section 23 as section 13 of the High Courts Act, 1861 did clause 15 of the Letters Patent of 1865. Both the sections can be treated to be independent of each other. 10. Even if the expression 'appellate jurisdiction' in section 27 be construed strictly and is held not to include revisional jurisdiction, omission of revisional jurisdiction, in section 27 does not cause inconvenience for the exercise of revisional jurisdiction in this High Court as the omission in section 13 of the High Court Act, 1861, of revisional jurisdiction did in British Indian High Courts. There is another section in the Madhya Bharat High Court of Judicature Act under which rules can be framed for the exercise of revisional jurisdiction. That section is section 34 which reads as follows: "The High Court may make rules not inconsistent with this Act or any law for the time being in force in the United State to regulate its own procedure or the procedure of the Courts subordinate to it." It cannot be disputed that the manner of exercising jurisdiction is a part of High Court's procedure. Salmond defines the law of procedure as that branch of the law which governs the process of litigation. He further states that procedural law deals with the means and instruments by which the ends which the administration of justice seeks are to be attained. The latter regulates the conduct and relations of Courts and litigants in respect of the litigation itself. (Vide Jurisprudence by Salmond 10th Edn., pp. 475, 476). The manner of exercising jurisdiction, therefore, is "nothing but a part of procedure, in my judgment, and the High Court can make rules for the exercise of revisional jurisdiction under section 34 of the Madhya Bharat High Court of Judicature Act. 11. From the discussion above, it is clear that the position under the Madhya Bharat High Court of Judicature Act is quite different from that under the High Court Act of 1861 and Letters Patent of 1865. Omission of revisional jurisdiction in section 27 does not lead to the irresistible conclusion that the word 'appellate jurisdiction' used in clause (b) of section 23 is used in a broad sense. Omission of revisional jurisdiction in section 27 does not lead to the irresistible conclusion that the word 'appellate jurisdiction' used in clause (b) of section 23 is used in a broad sense. 22 Mad 68', is, therefore, no authority for an argument that the expression 'appellate jurisdiction' occurring in section 23 (b) of the Madhya Bharat High Court of Judicature Act is used in a broad sense and therefore includes revisional jurisdiction. 12. Another contention raised by the learned counsel for the non - Applicant is that an appeal under section 23 was not provided at the time when the suit was instituted and hence no right of appeal accrues to the applicant. That the right of appeal is governed by the law in force at the time of the institution of the suit is a proposition of law, which is now well established. But that proposition of law is not absolute. It is subject to the limitation that the new statute does not alter the position either by express provision or by necessary implication. Maxwell states the proposition in the following words: "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." (Vide Maxwell on Interpretation of Statutes, 9th Edn., p. 229). In another place Maxwell writes on the same subject as follows: "It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication." (Maxwell on Interpretation of statutes, 9th Edn., p. 221). The same view has been followed in 'Dita Ram v. Atmaram', AIR (36) 1949 All 225 and 'Ramsingha v. Shankar Dayal', AIR (15) 1928 All 437. The same view has been followed in 'Dita Ram v. Atmaram', AIR (36) 1949 All 225 and 'Ramsingha v. Shankar Dayal', AIR (15) 1928 All 437. Section 2 (b) of the Madhya Bharat High Court of Judicature Act lays down as follows: "This Act shall apply to all criminal and civil proceedings including those under testamentary, intestate, matrimonial, divorce and insolvency jurisdiction, pending in the Courts in any State on the date on which the State is included in the United State and to such proceedings, arising in the said States, after those dates." Gwalior was included in the United State on the 16th June 1948. On that date, this case was pending and it was also pending on 18th January, 1949 when the Madhya Bharat High Court of Judicature Act came into force. In these circumstances there is no doubt, therefore, that the Madhya Bharat High Court of Judicature Act applies to this case and the applicant is, therefore, entitled to claim benefit of section 23, provided the essential conditions are satisfied. This contention of the learned counsel for the non-applicant, therefore, cannot be accepted. 13. In the result the preliminary objection must be upheld. The application is, therefore, rejected with costs.