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1952 DIGILAW 10 (MP)

Gulabchand Gambhirmal v. Kudilal Govindram

1952-01-21

ABDUL HAKIM KHAN, CHATURVEDI, DIXIT, KAUL, SHINDE

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JUDGEMENT : DIXIT, J. This is a petition for leave to appeal to the Supreme Court from the order made in Civil Special Appeal No. 5 of 1949 whereby an appeal preferred by the petitioner from the judgment and decree dated 2-12-1948 in appeal of a Division Bench of this Court was rejected by us on the preliminary ground that it was incompetent for the reason that under Section 25 of the High Court of Judicature Act, (Act No. VIII of 1949) no appeal lay from a decree or an order passed by a Division Bench of this Court before the coming into force of the High Court Act on 13-1-1949. The facts of the suit which gave rise to the Special Appeal are stated in the judgment dated 2-12-1948 of the Division Bench in Civil First Appeal Nos. 51 and 61 of 1948 and need not be recapitulated here. On the question of the maintainability of the Special Appeal purported to have been filed under Section 25 of Act No. VIII of 1949, it was contended before us that Act No. VIII of 1949 was retrospective in its operation and that even if the decree of the Division Bench appealed from had become final under the Madhya Bharat High Court of Judicature Ordinance (Ordinance No. II of 1948), it was appealable under Section 25 of Act No. 8 of 1949 read with Section 2 (b) of the Act which gave it retrospective effect; that in view of the provisions of Section 40 of the Act No. VIII of 1949 which repealed Ordinance No. II of 1948, and its amending Ordinances, the decree made by the Division Bench should, in law, be deemed to have been passed under Act No. VIII of 1949 and further that in interpreting the provisions of this Act, the provisions of the repealed Ordinances should not be looked into for the purpose of showing that the decree appealed from had become final or for establishing that S. 2(b) of Act No. VIII of 1949 was passed with the same object and for the same purpose as S. 4(b) of the repealed Ordinance No. II of 1948. These contentions were rejected by us and we held that S. 2(b) of the High Court Act was only a re-enactment of S. 4(b) of Ordinance No. II of 1948, and that its scope and purpose was simply to define the jurisdiction of the High Court; that the proviso to Section 40 of the High Court Act merely safeguarded the validity of the matters mentioned in the proviso and acts done under the Ordinance, and prevented the High Court Act from interfering with rights already acquired by a party and that it did not give to a party any further right than he already had or give to the High Court Act a retrospective effect; and that there was nothing in the language of S. 25 of the High Court Act to indicate that it was intended to apply to orders and decree final at the date when the High Court Act came into force. 2. The petitioner seeks a certificate under Article 133(1) of the Constitution. It is not disputed that the case fulfils the requirements of Article 133(1) as regards the value of the subject-matter and the only question is whether the other conditions of Article 133(1) are satisfied. In seeking permission to carry this matter on appeal to the Supreme Court, Shri Engineer, learned counsel appearing on behalf of the petitioner, urges that the order of this Court rejecting the appeal as incompetent did not affirm the decision of the Court immediately below and that, therefore, the petitioner is entitled to the leave asked for without showing that the proposed appeal involves some substantial question of law. It is said that affirmance of the decision of the Court immediately below implies jurisdiction to entertain an appeal from the decision and to dispose it of on merits; that if there is no jurisdiction to entertain the appeal, the decree appealed from cannot be varied or affirmed and that, therefore, the order of this Court dismissing the Special Appeal on the ground that it had no jurisdiction under S. 25 of the Act to entertain the appeal was not an affirmance of the decision of the Division Bench. In the alternative, it is urged that even if the order of this Court rejecting the appeal is taken as an order affirming the decision of the Division Bench, the order involves a substantial question of law namely the interpretation of Sections 2(b), 25, 37 and 40 of the High Court Act. Learned counsel for the petitioner argues that a substantial question of law need not be a question of general importance; and that if a question of law arises between the parties and is one on which there may be room for reasonable doubt, or difference of opinion, then it would be a substantial question of law within the meaning of Article 133 of the Constitution of India. It is said that having regard to the aim, scope and object of Act No. VIII of 1949, and the language of the sections referred to above, the question whether under S. 25 of the Act, decrees and orders made by a Division Bench before the coming into force of the High Court Act are appealable, is reasonably debatable. 3. The petition is opposed by the opponents, the proposed respondents, on the ground that the order of this Court rejecting the Special Appeal affirmed the decision of the Division Bench and that there is no substantial question of law so as to justify the grant of leave under Article 133(1) of the Constitution. Mr. Amin's contention is that though the appeal was dismissed on the preliminary ground that no appeal lay under S. 25 of the Act, nonetheless, the order dismissing the appeal affirmed the decision of the Court below inasmuch as the result of the order was that the decision of the Court below stood unaltered. In support of the contention that the order of this Court rejecting the appeal affirmed the decision of the Court below, Mr. In support of the contention that the order of this Court rejecting the appeal affirmed the decision of the Court below, Mr. Amin relied upon the decision of the Allahabad High Court 'MAHADEO SAHAI v. SECRETARY OF STATE', 54 All 390, where it was held that the dismissal of an appeal by the High Court on the failure of the appellant to furnish security for the costs of the respondent was an order "affirming the decision of the court below" within the meaning of the last paragraph of S. 110, C. P. C. Learned counsel for the opponents does not dispute the proposition that a question of law in respect of which there may be difference of opinion is a substantial question of law. He, however, contends that this court held that the decision dated 2-12-1948 of the Division Bench was not appealable under S. 25 of the High Court Act and that, therefore, the appeal was incompetent on a consideration of the language of Ss. 2(b), 25, 37, 40 of the High Court Act and on an application of the principles laid down by the Privy Council in 'DELHI CLOTH AND GENERAL MILLS CO. v. COMMR. OF INCOME TAX DELHI'. AIR 1927 PC 242 and in the case of 'COLONIAL SUGAR REFINING CO. v. IRVING', (1905) AC 369 and that therefore, as the matter is covered by these authoritative decisions, it cannot be said that it involves a substantial question of law. 4. In my opinion, there is considerable force in the contention of the learned counsel for the petitioner that the order of this Court dismissing the Special Appeal on the ground, that no appeal lay under S. 25 of the Act. is not an order which affirms the decision dated 2-12-1948 of the Division Bench. It seems to me that the expression "affirms the decision of the Court immediately below" implies that the High Court has dealt judicially with the decision of the Court below and upheld it. Where, as in the present case, the Court holds that it has no jurisdiction to entertain an appeal from the decision of the Court below and rejects the appeal, it seems to me difficult to say that the decision of the Court below is affirmed by the rejection of the incompetent appeal. Where, as in the present case, the Court holds that it has no jurisdiction to entertain an appeal from the decision of the Court below and rejects the appeal, it seems to me difficult to say that the decision of the Court below is affirmed by the rejection of the incompetent appeal. This view receives some support from the decision of the Privy Council in 'ABDUL MAJID v. JAWAHIRLAL', 36 All 350: AIR 1914 PC 66 . In that case, their Lordships of the Privy Council considered the question of the effect of the dismissal of an appeal in the Board for want of prosecution. Lord Moulton in delivering the judgment of the Board observed : "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit, and could in no sense, be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that, therefore, he was in the same position as if he had not appealed at all." 5. It follows, a fortiori, from these observations that when an appeal is dismissed on the ground that no appeal lay, it cannot be said that the order dismissing the appeal is an order adopting or confirming the decision appealed from. This Privy Council decision has not been referred to in the judgment of the Allahabad High Court, in 'MAHADEO SAHAI v. SECRETARY OF STATE', 54 All 390. Furthermore, in my judgment, the decisions of the Allahabad High Court in 54 All 390 and 'BENI RAI v. RAM LAKHAN RAI', 20 All 367 and of Lahore High Court in 'CHUHI LAL TULSI RAM v. AMIN CHAND', 14 Lah 609, are distinguishable on the ground that in those cases the appeals were competent and the High Court had jurisdiction to entertain them, and the order dismissing the appeal could be regarded as one passed dealing judicially with the matter and holding that the appeal was not supported. I am, therefore, inclined to think that in the present case, the petitioner is entitled to the leave asked for without showing that the proposed appeal involves some substantial question of law. 6. I am, therefore, inclined to think that in the present case, the petitioner is entitled to the leave asked for without showing that the proposed appeal involves some substantial question of law. 6. I do not wish to base the grant of permission to appeal to the Supreme Court solely on the ground that our order dismissing the Special Appeal was not an order affirming the decision of the Division Bench, as I am of the view that the proposed appeal involves a substantial question of law. The question of law involved in the Special Appeal before us was whether a decree or an order passed by a Division Bench of this Court and final and conclusive under the Madhya Bharat High Court Ordinance (Ordinance No. II of 1948) was appealable under S. 25 of the High Court Act, which brought into existence a right of appeal which did not previously exist under the Ordinance. This question turned upon the construction of S. 2(b) of the High Court Act, which made the Act applicable 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." 7. The main contention of the petitioner who was the appellant before us, was that the High Court Act should be construed according to the natural meaning of the language of the Act and that in the construction of the Act and particularly S. 2(b) any considerations derived from the previous state of law, namely, the Ordinance No. II should not be taken into account and that so construing the necessary implication of Section 2(b) of the High Court Act was to make it retrospective so as to affect even vested rights. This method of construction did not commend itself to us and we held that having regard to the scope and purpose of S. 2(b) of the Act and that of the similarly worded S. 4.(b) of the Ordinance, the section simply defines the jurisdiction of this Court and that there was no ground to read into the generality of the expression used in Section 2(b) of the Act an intention to give retrospective effect to Section 25 of the High Court Act or to any other provision of the statute. There was no dispute then, even as there is none now, as to the well-established principles applicable in determining whether a statute is retrospective in operation. The real question before us was one of the construction of the language of Section 2(b) of the High Court Act. I feel it is possible to maintain that the question of the scope and purpose of Section 2(b) of the Act and the construction of its language is reasonably debatable. I do not think that it can seriously be said that the contentions of the appellant in the Special Appeal were devoid of any substance and that we dealt with them at length simply out of respect to the learned Counsel advancing them. If we were to accept the contention of the learned Counsel for the opponents that the question is concluded by the principles laid down by the Privy Council in the cases of 'DELHI CLOTH and GENERAL MILLS CO. v. INCOME TAX COMMR., DELHI', AIR 1927 PC 242 and 'COLONIAL SUGAR REFINING CO. v. IRVING', 1905 AC 369, it would mean that an aggrieved party would not be able to obtain leave to appeal to the Supreme Court in any case where the question is whether a particular statute on its language has retrospective effect. 8. For these reasons, in my opinion, the present case is one in which the Court ought to issue a certificate granting leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India. Costs in respect of this application should, in my view, abide the final decision of the proposed appeal. 9. SHINDE, J. :- I agree. 10. KHAN, J. :- I agree. 11. KAUL, C.J. :- I agree and will add only a few observations of my own. 12. Costs in respect of this application should, in my view, abide the final decision of the proposed appeal. 9. SHINDE, J. :- I agree. 10. KHAN, J. :- I agree. 11. KAUL, C.J. :- I agree and will add only a few observations of my own. 12. It is not disputed that the decree sought to be challenged is a decree in a case in which the value of the subject-matter in dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20,000/-. It was contended however that the decree of the Full Bench affirmed the decree of the Court immediately below and accordingly in order to be entitled to appeal to the Supreme Court the appellant must further show that the appeal involves a substantial question of law. Mr. Amin argued that no such question was involved and unless we were prepared to certify that the case was a fit one for appeal to the Supreme Court under Article 133(1) (c) of the Constitution the application be rejected. I am unable to accept this contention. We are not asked to hold that the case was a fit one for appeal to the Supreme Court under Article 133(1) (c) of the Constitution. Therefore two points arise for consideration: (1) Did the decree appealed from affirm the decision of the court immediately below? If so, (2) Does the appeal involve some substantial question of law? 13. The Full Bench dismissed the appeal as it held that the decision of the Division Bench had become final and no appeal against it could be entertained. In other words, the Full Bench deemed itself precluded from considering the matter at all. Accordingly, no question of affirmance of the decision sought to be challenged before it could arise. The Full Bench held that it had not the authority to touch the decision of the Division Bench. It could neither affirm the decision nor reverse or modify it. I am clear therefore that this was not a case of affirmance of the decree which was sought to be challenged before the Full Bench. 14. It will further be noticed that the decision sought to be challenged before the Full Bench was not one of the court "immediately below". I am clear therefore that this was not a case of affirmance of the decree which was sought to be challenged before the Full Bench. 14. It will further be noticed that the decision sought to be challenged before the Full Bench was not one of the court "immediately below". It was the decision of the High Court itself and therefore the case is not one to which the last part of Article 133(1) can apply. 15. For the reasons given above, I am of opinion that the applicant is entitled to appeal to the Supreme Court as a matter of right without obtaining a further certificate that a question of law is involved in the appeal. Were it held however, that the Full Bench affirmed the decree of the court immediately below, I am satisfied that a substantial question of law is involved in the appeal. This question is, what is the true scope of S. 2(b) of Act 8 of 1949, and if the interpretation put upon it by the Full Bench is correct. Another substantial question of law in the case is whether S. 25 of the said Act could have retrospective operation? 16. CHATURVEDI, J. :- I agree that a certificate be granted under Article 133(1) (a) of the Constitution to the effect that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees. I am of opinion that no other certificate is required or can be granted in this case. 17. A further certificate that the appeal involves some substantial question of law can be granted only if a case comes under the last para of Clause (1) of Article 133 of the Constitution. This requires two things: first, a decision of a court immediately below the High Court; and secondly, the affirmance of this decision by the High Court. Where the first condition is not fulfilled an inquiry into the existence of the second condition is not called for. 18. This requires two things: first, a decision of a court immediately below the High Court; and secondly, the affirmance of this decision by the High Court. Where the first condition is not fulfilled an inquiry into the existence of the second condition is not called for. 18. The question then arises : Whether the decision of the Division Bench of this Court, passed in appeal, on 2-12-1948, from a judgment of a single Judge of Indore State High Court, sitting on the original side, is a decision of "a Court immediately below" the High Court within the meaning of the expression in the last paragraph of Article 133(1) of the Constitution? 19. It may not be improper here to refer to the divergence of judicial opinion on the point whether a Judge of a High Court sitting alone is or is not a "court immediately below" the High Court when an appeal from the single Judge lies to the Division Bench of that court. One view is that such a court is not subordinate to the High Court and is not a "court immediately below" within the meaning of Section 110 of the Civil Procedure Code (Act V of 1908). Reference may be made in this connection to 'DEBANDRANATH v. BIBUDHENDRA MANSINGH', 43 Cal 90 : AIR 1916 Cal 973 : 33 Ind Cas 745. This is a decision of Sir Lawrence Jenkins, C.J., and Chatterji, J., and the view of their Lordships can find support, though indirectly, from certain observations made by a Division Bench of the Bombay High Court in 'BADRUDDIN ABDUL RAHIM v. SITARAM VINAYAK'. 52 Bom 753 : AIR 1928 Bom 371. This view is based upon the idea that a Judge sitting alone is not a subordinate court, but performs a function directed to be performed by the High Court; and that an appeal from one tribunal to another tribunal which is differently constituted stands on a different footing from an appeal from the judgment of a tribunal where only the Judge constitutes the tribunal, to the same tribunal, where two or more Judges constitute the same tribunal. 20. 20. In 1941, the Calcutta High Court (Derbyshire, C.J. and Panckridge, J.) without referring to the 1916 decision held in 'PROBHAWATI KANWAR v. PANMAL LODHA', 45 Cal WN 1002, that where a Bench of two or more Judges has affirmed on a Letters Patent Appeal the judgment of adjudge of the High Court, sitting singly on the original side, the decision of the single Judge is the decision of a court 'immediately below' within the meaning of S. 110 of the Civil Procedure Code. This view was In consonance with the decisions reported in 'MINNA HEALTHERLY v. C. B. SEN', AIR 1928 Lah 537 and in 'GOPAL LAL v. BALKISHEN', 13 Lah 338 : AIR 1932 Lah 121 (2). 21. In 'SHEIKH WAHIDUDDIN v. MAKHAN LAL', AIR 1944 Lah 458 : ILR (1945) Lah 242 (FB), it was decided by a Majority (Din Mohammad and Abdur Rahman, JJ.) that where an appeal is preferred under the Letters Patent to the High Court from the judgment of a single Judge of the High Court sitting on the original side, the latter is a court immediately below the High Court Bench which disposes of the appeal. But a Judge sitting singly on the appellate side of the High Court is not a court immediately below the Letters Patent Bench which hears an appeal from his decision. In his dissenting note, Blacker, J., pointed out, and in my opinion rightly, that no distinction can be made between the status vis-a-vis the High Court of a single Judge trying an original case and a single Judge hearing an appeal. It was observed that if a Judge sitting singly on the original side of the High Court is a Court immediately below the Court which hears appeal from his decision a Judge sitting singly on the appellate side of the High Court is also a court immediately below the Letters Patent Bench which hears an appeal from his decision. 22. Thus, there are two contrary views: one, holding that a Bench of the High Court is not a Court immediately below the larger Bench which hears an appeal from its decision; another, holding that the very fact that an appeal is provided from decision of a Bench to a larger Bench implies that the first Bench is placed immediately below that of the larger Bench hearing an appeal from its decisions. For the purposes of this case, it does not appear to be necessary to express any opinion on the point which view is correct; for, according to both the views, the decision of the Division Bench of this Court on 2-12-1948, cannot be held to be that of "a Court immediately below". 23. Assuming that the second view is the correct one, it will be seen that it is based upon the idea that the term "appeal" means the judicial examination by a Higher court of the decision of an inferior court and that the very word 'appeal' implies the existence of two courts, higher as well as an inferior one. 24. It has unanimously been held by us in two Full Bench cases (1) 'DAULAT SINGH v. EMPEROR', AIR 1950 Madh B 112 : 1 MBLR 229 (FB), and in (2) 'GULABCHAND v. KUDILAL'. AIR 1951 Madh B 1 (FB), that no appeal lay to the Full Bench from a decision of a Division Bench of this court if that decision was given before 18-1-1949. This is the opinion of all the present six Judges, including that of my Lord the Chief Justice. If from a decision of a Division Bench no appeal to a Full Bench was competent, it follows from this, as a corollary, that the decision dated 2-12-1948 of the Division Bench of this court was final and it cannot be held to be that of 'a court immediately below' the High Court. If there is no decision of a court immediately below, the question whether this decision was affirmed or not does not at all arise and consequently does not call for any expression of opinion on this point. 25. On the basis of this reasoning, I am of opinion that the case does not fulfil the requirements of the last para of Article 133 (1) of the Constitution and a further certificate that the appeal involves substantial question of law is neither necessary nor can it be granted in this case. 25. On the basis of this reasoning, I am of opinion that the case does not fulfil the requirements of the last para of Article 133 (1) of the Constitution and a further certificate that the appeal involves substantial question of law is neither necessary nor can it be granted in this case. I may also add that where a point is covered by a decision of all the Judges of a High Court, without any difference of opinion, that point cannot be deemed to be a 'reasonably debatable' point, and a reasonably debatable point howsoever important it may be from the mere academic point of view, cannot amount to substantial question of law within the meaning of Article 133 (1) of the Constitution. 26. By the Court. (Kaul, C.J.) : The order of the Full Bench is pronounced by me today. A certificate be granted to the applicant as ordered. Certificate granted.