Udaybhan v. Firm Shankar Lal Motilal — 1952 DIGILAW 93 (MP)

JUDGMENT : DIXIT, J. This is a second appeal by the defendant in a suit for the recovery of Rs.2393-6-0 in respect of certain transaction in silver. The suit was filed by the plaintiff respondent on 3-4-1947 in the Court of Munsiff Indore. The trial Court decreed the plaintiff's claim to the extent of Rs.1226/6/-. The District Judge of Indore held the defendant's appeal from the decision of the Munsiff as barred by time, and rejected it. Thereupon, the defendant preferred the present second appeal to this Court on 22-11-51. Under the rules of this Court in force at the time of the institution of the appeal, an appeal against a decree passed by a District Judge in the exercise of his appellate jurisdiction and arising out of a suit for money or moveable property of value exceeding Rs.2000/- or a suit for land or other suit of value exceeding Rs.1000/- for purposes of jurisdiction had to be heard by a Division Bench. Accordingly, this appeal was first placed before a Division Bench on 27-11-51 when it was directed to put up with the record of the case. On 24-12-1951 the Rules of this Court were altered so as to provide that an appeal from an appellate decree of a District Court in which the value of the subject-matter in appeal or of the subject-matter in appeal and any cross-objection therein under O.41, R.22 did not exceed Rs.4000 could be heard and disposed of by a Judge sitting alone. When the appeal came on for hearing before a single Judge under the new Rules, an objection was taken on behalf of the appellant that the new rule was inapplicable to the hearing of the appeal and a single Judge was not competent to hear and dispose of the appeal. Kaul C.J. before whom the appeal was placed for hearing passed an order on 7-1-1952 directing that the appeal be placed before a Division Bench for the consideration of the question raised as to the jurisdiction of a Single Judge to hear and dispose of the appeal. Kaul C.J. before whom the appeal was placed for hearing passed an order on 7-1-1952 directing that the appeal be placed before a Division Bench for the consideration of the question raised as to the jurisdiction of a Single Judge to hear and dispose of the appeal. The appeal was then placed before a Division Bench consisting of my Lord the Chief Justice and Mehta, J. In view of the considerable importance of the question, likely to affect a number of appeals pending in this Court, the learned Chief Justice and my brother Mehta directed on 22-4-1952 that the appeal be placed before a Full Bench. 2. No specific question has been referred to the Full Bench for opinion. But I take it that the question for our decision is whether the new. Rule 1, (II) of Chap.1 of the Rules of Madhya Bharat High Court governs appeals arising out of cases instituted before 24-12-1951 that is, before the rule came into force. 3. Mr. Newaskar the learned counsel appearing on behalf of the appellant maintained that a single Judge had no jurisdiction to hear this appeal. He presented before us his case in two aspects. First of all, it was said that the suit out of which the present appeal arose was filed in the trial Court in 1947 when Indore State was a separate entity; that under the Constitution of the Indore High. Court a second appeal from the judgment and decree passed by a Munsiff had to be heard and disposed of by a Bench of two Judges of the Indore High Court.; that the right of second appeal to the High Court and of its being heard by a Bench of two Judges was on the basis of the decision of this Court in - 'Gulab Chand v. Kudilai', AIR 1951 Madh B 1 (A) which followed - 'Colonial Sugar Refining Co. v. Irving', (1905) AC 369 (B); - 'Delhi Cloth and General Mills Co. v. Irving', (1905) AC 369 (B); - 'Delhi Cloth and General Mills Co. v. Commissioner of Income Tax, Delhi', AIR 1927 PC 242 (C) and - 'Sardar Ali v. Doliluddin', AIR 1928-Cal 640 (D) among others, was a vested right of the appellant which accrued to him at the time of the institution of the suit and that this right could not be taken away by a rule of the High Court; nor could the rule be so construed as to destroy this substantive right. The second way in which the case was submitted before us was that the new rule was a clog on the appellant's right of appeal to the Supreme-Court under Art.133. It was said that if the appeal was heard under the old rule of this Court by a Division Bench, the appellant would be entitled to appeal to the Supreme Court after satisfying the. requirements of Art.133; while on the other hand if it was heard under the new rule by a Single Judge, no appeal would lie to the Supreme Court because of the prohibition in Art.133(4) of an appeal to the Supreme Court from the decree-or order of a Judge sitting alone. It was contended that as on the date of the presentation of this appeal, the appellant had a right of appeal to the Supreme Court after having his appeal heard by a Division Bench at the first stage, this right could not be interfered by having the appeal heard first by a single Judge and then asking the party aggrieved by the decision of the Single Judge to take the matter in appeal to a Division Bench: with the leave of the Court under S.23, Madhya Bharat High Court Act, 1949. Learned counsel for the appellant strongly relied on a judgment of the Punjab High Court in - 'Gordhan Das Baldeo Das v. G.G. in Council', AIR 1952 Punj 103 (E). 4. Mr. Waghmare learned counsel for the respondent supports the appellant on the question of the jurisdiction of a single Judge to hear and dispose of this appeal. We have, however, had the advantage of hearing able and elaborate arguments of Mr. Chitale, Advocate-General in support of the opposite view and we are indebted to him for appearing as 'amicus curiae'. The argument of Mr. We have, however, had the advantage of hearing able and elaborate arguments of Mr. Chitale, Advocate-General in support of the opposite view and we are indebted to him for appearing as 'amicus curiae'. The argument of Mr. Chitale, briefly summarised, is that the appellant cannot avail himself of the Constitution and rules of the Indore High Court which have ceased to exist and of which this Court is not a successor Court; that the Madhya Bharat High Court is a new Court and appeals to this Court and the mode of their hearing is governed by its own Constitution, namely, the Madhya Bharat High Court Act,1949 and the rules of practice and procedure framed by this Court under S.27 of the Act. In support of this proposition Mr. Chitale relies on a Full Bench decision of this Court in - 'Bharose Lal v. Dwarka Prasad', 1949 Madh B LR 8 (G) and on - 'State of Serai Kella v. Union of India', AIR 1951 SC 253 (G). It is further argued that under S.27 of the High Court Act this Court has the power to make rules for the exercise of the original and appellate jurisdiction vested in it, by one or more Judges or by Division Courts and also amend them; that a rule laying down the powers of a single Judge or a Division Bench is a rule of practice and procedure as to the internal arrangement within the Court for disposal of cases and that no party has a vested right of being heard by a particular Judge or by a particular number of Judges; and that by the change in the rules the appellant's right of second appeal to the High Court under S.23 of the High Court Act read with S.100, Civil P.C. is not affected. Mr. Chitale cites - 'Har Prasad v. Boolchand', AIR 1937 All 19 (H); - 'Radha Kishan v. Shridhar', AIR 1950 Nag 177 (I); - 'AIR 1952 Punj 103 (E)'; and - 'AIR 1928 Cal 640 (D)' to support the contention that a party cannot claim that his case should be heard by so many Judges any more than by such and such Judges. As to the contention of the appellant that by the change in the rule, his right of appeal to the Supreme Court is affected, the reply of Mr. As to the contention of the appellant that by the change in the rule, his right of appeal to the Supreme Court is affected, the reply of Mr. Chitale is that without entering into any controversy as to whether the appellant, who had no right of appeal to the Privy Council or the Federal Court at the time of the institution of the suit, can appeal to the Supreme Court under Art.133, and assuming for the purposes of this appeal that he can, the appeal would be under Art.133(1)(c) at the discretion of this Court, as the amount or value of the subject-matter of the dispute in the Court of first instance and in this appeal, is less than twenty thousand rupees, that as observed, in - 'AIR 1950 Nag 177 (I)' a distinction must be drawn between the appeals which satisfy the conditions of valuation prescribed in sub-Cls.(a) and (b) of Art.133(1), which are appeals as of right and an appeal under sub-cl.(c) which being at the discretion of the Court cannot be said to be a right of the litigant. Mr. Chitale has also drawn our attention to a recent Pull Bench decision of Patna High Court in - 'Mahendra Raut v. Darsan Raut', AIR 1952 Pat 341 (J) in which the learned Judges while observing that the distinction made in the Nagpur case between appeals which satisfy the condition of valuation and appeals with the leave of the High Court cannot be accepted as a valid distinction, have held that a change in the rule of the Court whereby an appeal is heard by a Single Judge instead of by two Judges cannot be said to affect the right of appeal given under Art.133 of the Constitution of India read with Ss.109 and 110, Civil P.C. 5. Proceeding now to consider the submissions of the learned counsel for the appellant, I do not think that the contention that on the date of the institution of the suit there accrued to the appellant a vested right of having his second appeal to the High Court heard by a Division Bench, is tenable. The contention is founded on the Constitution of the Indore High Court. The contention is founded on the Constitution of the Indore High Court. It is true that in 1947 when the suit was filed, the Indore State was an independent political entity that the appellant had a right of second appeal to the Indore High Court and that S.6 of the Constitution of the Indore High Court provided that second appeals from the decrees passed by a Munsiff shall be heard and disposed of by a Bench of two Judges of the Indore High Court. It may also be conceded that the provision in the Constitution of Indore High Court for the hearing of a second appeal from a decision of a Munsiff by a Bench of two Judges was a statutory provision which the Indore High Court could not alter by making any rules about the practice and procedure in the High Court; and in fact the Indore High Court had under the Constitution, no power to make rules in respect of matters dealt with by Ss.5 and 6 of the Constitution of the High Court. But from the fact that there was a statutory provision in the Constitution of the Indore High Court for the hearing of the second appeal by a Bench of two Judges, it does not follow that the hearing of an appeal by a Bench of two Judges was a vested right of the litigant. For, all that S.6 of the Constitution of Indore High Court did was to determine the procedure to be followed in the hearing of second appeals to the High Court.This section really dealt with a matter of procedure, and as I will presently point out, that if under the rules of the Court or under a statutory provision an appeal is to be heard by a particular number of Judges, then it is not a vested right of any party. If, during the existence of the Indore High Court, its constitution had been amended so as to enable one Judge to exercise the jurisdiction of the High Court in the hearing and the disposal of a second appeal, leaving the right of appeal to the High Court intact as before, it would have been impossible, in my opinion, to contend successfully before that Court that any litigant had a right to a hearing before two Judges. In fact, it is not the Constitution of the Indore High Court, but the Madhya Bharat High Court Act, 1949 and the Rules framed by this Court under that Act, that must be taken into consideration while considering the question of the powers and jurisdiction of this Court, and the practice and procedure of the Court. The Indore High Court having ceased to exist on the establishment of the Madhya Bharat High Court in 1948, the Constitution of the Indore High Court and the Rules of that Court cannot be said to have survived. As has been held by a Full Bench of this Court in 1949 Madh B LR 8 (F)', the Madhya Bharat High Court is not a successor Court of all the High Courts of the Covenanting States; nor has it only those powers which the defunct High Courts exercised. I observed in that case that Courts are established by the Sovereign Authority by a Statute or Letters Patent or Charter; and sometimes they also subsist by prescription on the implication that at one time there must have been a grant from the Sovereign Authority with regard to the establishment of the Court, which has now been lost. I pointed out that the power and jurisdiction of a new Court must be determined with reference to the Statute or Letters Patent alone under which it is established and that the provision in S.35(a) of the Madhya Bharat High Court Ordinance (No.II of 1948) that all cases pending in the High Court of any of the Covenanting States, shall stand removed to the Madhya Bharat High Court, could not be read as a provision vesting the Madhya Bharat High Court with all the powers and jurisdiction of the various High Courts of the Covenanting States. This view now finds support in the decision of the Supreme Court in ' AIR 1951 SC 253 (G). In that case the Supreme Court has clearly laid down that when a new Court is created then its powers and jurisdiction must be determined according to its own Constitution, and not the Constitution of the old Court, the pending cases of which have been transferred to the new Court for disposal. 6. In that case the Supreme Court has clearly laid down that when a new Court is created then its powers and jurisdiction must be determined according to its own Constitution, and not the Constitution of the old Court, the pending cases of which have been transferred to the new Court for disposal. 6. Learned counsel for the appellant referred us to a Full Bench decision of this Court in - 'Rajkumar Mills Ltd. v. Pratapsingh and the Hukam Chand Mills Ltd.', (M B I) - Second Appeal No.24 of 1950 (K) and said that this decision in effect holds that if a party has vis-a-vis the Indore High Court a vested right, that right would be available to the party in this Court also. In my view, the decision in the case of 'Rajkumar Mills (K)' is not in point here. In that case, the question was whether an appeal from a decision of a Division Bench given after the incorporation of S.25 in the High Court of Judicature Act was competent. It appears from the judgment of the Full Bench that Mr. Chitale who appeared on behalf of the appellant in that case relying on ' AIR 1951 SC 253 (G)' sought to argue that the principle of the right of appeal being a vested right applied only when an appeal lay to the same Court and that if a new Court was created and a right of appeal was for the first time granted to that Court or within the Court from a decision of a Division Bench to a Full Bench, then that principle did not apply. The learned Judges constituting the Pull Bench while observing that the Supreme Court decision reported in ' AIR 1951 SC 253 (G)' had no bearing on the case before them, and that a Court exercised only the powers which it possessed, held that inasmuch as the appellant in that case had at the time of the institution of the suit no right of appeal from the decision of a Division Bench of the High Court he could not take advantage of the right of appeal subsequently conferred under S.25 of the High Court Act. The full Bench decision in the 'Rajkumar Mills case (K)' is not an authority for the contention that in determining the powers and jurisdiction of this Court, the Constitution of the Indore High Court or of any other High Court of a Covenanting State ought to be taken into consideration. On the other hand that decision also recognises the fact that the powers and jurisdiction of this Court must be regulated by the Madhya Bharat High Court Act, 1949. The point that was taken by the counsel for the appellant in that appeal does not arise in the present case because here the appellant's right of second appeal to the High Court is unaffected and as I have said above he cannot claim that the hearing of an appeal by a Bench of two Judges is a vested right. The question, therefore, whether the principle of the right of appeal being a vested right only applies when an appeal lies to the same Court, does not arise for consideration here. 7. The question, which then arises, is of the power of this Court to make rules regulating its own practice and procedure. Section 27 of the High Court Act, 1949 empowers this Court by its own rules to provide "for the exercise by a single Judge or by Divisional Benches consisting 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." It cannot be disputed that the power to make rules includes the like power to vary, rescind and amend those rules. This power of the Court to make rules and vary or amend them is preserved by Art.225 of the Constitution of India which 'inter alia' says that the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any power to make rules of the Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of the Constitution. It is thus within the power of this Court to provide by rules whether the jurisdiction in appeals to it under S.23 of the High Court Act read with Ss.96 and 100, Civil P.C. is to be exercised by a single Judge or by a Bench of two or more Judges. Such a rule would be one not affecting the right of appeal but exclusively regulating the procedure of the hearing of the appeal. If, therefore, in 1948 it was provided by the Rules of this Court that a second appeal arising out of a suit for money exceeding Rs.2000/- in valuation would be heard by a Division Bench and if the rule has been now altered so as to enable a single Judge to hear and dispose of such appeals, it cannot be maintained that by the change a vested right of a party is affected. For a litigant has no vested right in the procedure as such surrounding the hearing of appeals in this Court. He has under S.23 of the High Court Act read with Ss.96 and 100, Civil P.C. a right of appeal to the High Court and not to any particular Bench of this Court. The principle that under such circumstances a party has no vested right to have his appeal to the High Court heard by a particular number of Judges is found asserted in a number of cases. The case of - 'AIR 1937 All 19 (H)', raised very much the same point as the one under consideration here. Sulaiman, C.J. and Allsop, J. observed as follows: "The question referred to this Bench is whether the appellant can claim as of right that this appeal should be heard by a Bench of two Judges of this Court. The valuation of this appeal is Rs.1200/- and at the time when it was filed it was cognizable by two Judges under the Rules made by this Court. Recently the pecuniary jurisdiction of a Single Judge has been raised upto Rs.2000/- and the appeal is now cognizable by a Single Judge. The learned counsel for both the parties urged before us that there was a substantive right vested in the appellant to have the appeal heard by a Bench of two Judges only and not by a Single Judge. The learned counsel for both the parties urged before us that there was a substantive right vested in the appellant to have the appeal heard by a Bench of two Judges only and not by a Single Judge. No doubt it is well established that the right of appeal is a substantive right and any rule taking away the right of appeal cannot have a retrospective effect so as to destroy that right. But under S.100, Civil P.C. the appellant had a right of appeal to the High Court from the decree passed in appeal by the Subordinate Judge on the grounds mentioned therein. The right was to appeal to the High Court and not to any particular Bench of this Court. Under S.108(1), Government of India Act, this Court has made its own rules providing for the exercise of its appellate jurisdiction by one or more Judges or by Division Court constituted of two or morp Judges. This rule is exclusively for regulating the procedure in this Court as regards the Constitution of Benches. We are unable to hold that the appellant has any vested right in such a Constitution. If by an amendment of the rules the Constitution of the Benches is altered the appeal still lies to the High Court and the appellant cannot claim that the appeal must be heard by a Bench as constituted before the rule was amended." To the same effect is the case of - 'AIR 1928 Cal 640 (D), where a Full Bench of the Calcutta High Court stated that: "Now, there is a certain paradox in regarding the right of appeal within the High Court from the decision of a Single Judge as a right 'vested' in the litigant at the date of the suit, since it is in no way certain that the case will ever be decided by a Single Judge. Again as the right of second appeal is the right given by S.100, Civil P.C. to appeal "to the High Court" it does not seem unreasonable that a litigant should take the internal arrangements, of the High Court as he finds them when he gets there. Following these two cases Hidayatullah, J. observed in - 'AIR 1950 Nag 177 (I)' "A party cannot be heard to say that the case should be heard by so many Judges any more than by such and such Judges. Following these two cases Hidayatullah, J. observed in - 'AIR 1950 Nag 177 (I)' "A party cannot be heard to say that the case should be heard by so many Judges any more than by such and such Judges. No litigant has a vested right in procedure and must take the rules in force as he finds them. In other words, the rules prescribing the number of Judges is really a matter of procedure and all changes in the procedure of the Court made even during the pendency of an action must be taken to apply to that action unless such changes and alterations touch a substantive right." A similar view has been taken in - 'In re, Vasudevasamiar', AIR 1929 Mad 381 (L); - 'AIR 1952 Punj 103 (E)' and - ' AIR 1952 Pat 341 (J). 8. It is thus clear that the appellant cannot claim that he had, whether at the time of the institution of the suit or at the presentation of the present appeal to this Court, a vested right of having his appeal heard by a Division Bench. If the matter stopped there, of course, it would be obvious that an alteration in the rule of the Court about the jurisdiction of a single Judge and Division Bench to hear and dispose of appeal could be made without affecting any vested right of any party. Learned counsel for the appellant, however, points out that the matter does not rest there, but the change effected on 24-12-1951 in the rules of the Court has interfered with the appellant's right of appeal to the Supreme Court under Art.133 of the Constitution read with Ss.109 and 110, Civil P.C., which is a vested right; and therefore, the new rule cannot be applied to the hearing of this appeal. 9. It cannot be gainsaid that if the appellant has a right of appeal to the Supreme Court under Art.133 and if that right is in any way interfered with by a change in the rule of this Court about the jurisdiction of a single Judge and a Division Bench, then the rule though in form one of procedure would really be of a character affecting the substantive right of appeal. The normal presumption that a statute is not intended to interfere with vested rights must then be applied to the construction of the rule and it must be held that the new rule which is not retrospective by express words or necessary intent and which came into force on 24-12-51 has no applicability to this appeal as also to other like appeals, pending in this Court on the said date. If any authority in support of this construction of the rule were necessary, I think it is to be found in a decision of our Court in - 'AIR 1951 Madh-B 1 (A), and in the cases relied therein. I will assume for the purposes of my judgment that the appellant who had at the date of the institution of the suit in 1947 no right of appeal to the Privy Council or the Federal Court can appeal to the Supreme Court under Art.133, though I do not wish to be considered as expressing an opinion on the point. But the crucial question for consideration is whether he can as of right appeal to the Supreme Court. The answer, in my view, must be in the negative. As the amount of the subject-matter of the dispute in the Court of first instance was and is in this appeal less than twenty thousand rupees, it being respectively Rs.2893-8-0 and Rs.1226-8-0, the appeal to the Supreme Court would clearly not be under sub-cl.(a) or (b) of Cl.(1) of Art.133. The appeal would be one under sub-cl.(c) of Cl.(1) on the certificate of this Court that the case is a fit one for appeal to the Supreme Court. Now there is a real distinction between an appeal under sub-cl.(a) or (b) of Cl.(1) of Art.133 and under sub-cl.(c). It will be observed that whereas under sub-cl.(a) or (b) the appeal to the Supreme Court is dependant on the establishment of the appealable amount or value and also on there being a substantial question of law where the decree to be appealed from is one of affirmance, under sub-cl.(c) the appeal is solely dependant on the discretion of the High Court. An appeal under sub-cl.(a) or (b) is one as of right, for a party becomes entitled to appeal under either of these sub-clauses 'ex facto' when certain facts and conditions are found to exist after investigation. An appeal under sub-cl.(a) or (b) is one as of right, for a party becomes entitled to appeal under either of these sub-clauses 'ex facto' when certain facts and conditions are found to exist after investigation. There is no such right of appeal under sub-cl.(c). An appeal under this sub-clause is quite independent of the existence of any fact or conditions and lies only at the discretion of the High Court. It is true that in all these cases the High Court issues a certificate of appeal. But while a certificate for an appeal under sub-cl.(a) or (b) declares a determination of the existence of certain conditions on which the right of a litigant to appeal arises and on which the jurisdiction of the Supreme Court to entertain the appeal rests, a certificate for an appeal under sub-cl.(c) merely embodies the will of the High Court itself, which is sufficient to give jurisdiction to the Supreme Court to entertain the appeal, that the question involved in the case is one which by reason of its general or public importance or otherwise ought to be submitted to the Supreme Court for determination. If, therefore, an appeal under sub-cl.(c) of Art.133(1) depends solely on the volition and discretion of this Court, it is a misnomer to say that the appellant has a right of appeal under that sub-clause. A person cannot be said to have a right to do anything when he cannot do it except with the permission of some other person or authority. 10. The distinction between appeals under sub-cls.(a) and (b) on one hand and appeals under sub-cl.(c) on the other has been forcefully brought out in the Full Bench decision of the Nagpur High Court in - 'AIR 1950 Nag 177 (I)'. In this case the nature of appeals under S.109 read with S.110, Civil P.C. was considered and it was held that while under Cls.(a) and (b) of S.109 a substantive right is involved the same cannot be said of appeals under cl.(c) of that section. In this case the nature of appeals under S.109 read with S.110, Civil P.C. was considered and it was held that while under Cls.(a) and (b) of S.109 a substantive right is involved the same cannot be said of appeals under cl.(c) of that section. Hidayatullah J., with whom Bose C.J. and Kaushalendra Rao J. agreed, after considering the effect of the cases of - '(1905) AC 369 (B)'; - 'Attorney General v. H.J. Sillam', (1864) 10 HLC 704 (M), and - 'Banarasi Prasad v. Kashi Kishen Narain', 23 All 227 (PC) (N), said that the only appeal which cannot be taken away except by the clearest piece of legislation is an appeal which vests in a party as of right; that an appeal is merely a limitation of a Court's jurisdiction to pronounce a final decision in matters litigated; that where the decision is appealable as of right the limitation is imposed 'ab extra' but if the limitation arises from the volition of the Court itself, it having the power to grant leave to appeal exercising its own discretion, then the appeal is not one as of right and it is wrong to think that a discretion conceded to a Court is a right of the litigant. 11. Learned counsel for the appellant has placed reliance on - 'AIR 1952 Punj 103 (E)', to support the contention that the distinction made by Hidayatullah J. is not a valid distinction. The Punjab decision, no doubt, supports the appellant. In the Punjab case which is also a Full Bench case, Bhandari, J. said: "Section 109 draws no distinction whatsoever between appeals which can be preferred under any of three clauses of the said section for it provides that "an appeal shall lie" to the Supreme Court, (a) from any decree or final order passed on appeal by a High Court or by any other. Court of final appellate jurisdiction, (b) from any decree or final order passed by a High Court, in the exercise of original civil jurisdiction; and (c) from any decree or order, when the case as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council." "Leave to appeal to the Supreme Court can be granted either when the case fulfils the requirements of S.110 or when it is otherwise a fit case for appeal to the Supreme Court. In either case the petitioner has to apply for a certificate either that the case fulfils the requirements of S.110 and is, therefore, a fit case for appeal to the Supreme Court or that for other reasons it is a fit case for appeal to the Supreme Court. Ordinarily it is not difficult to satisfy the Court that the case fulfils the requirements of S.110 as far as the value of the subject-matter is concerned. It is more difficult to satisfy the Court that the case involves the decision of a substantial question of law. It is still more difficult to satisfy the Court that even though the matter in controversy is not measurable by money the case is a fit one for appeal to the Supreme Court. But the fact that it is more difficult to obtain a certificate in one case than in another, does not, in my opinion, alter the fact that a person who procures the certificate under cl.(c) has as much to prefer an appeal to the Supreme Court as the person who procures a certificate under either of the other two clauses. The only construction that may reasonably be placed on the words "an appeal shall lie to the Supreme Court" is that a person who satisfies any one or more of the conditions specified in Ss.109 and 110, Civil P.C. is entitled to claim that leave to appeal must be given to him as a matter of right. If for example, he satisfies the Court that his case fulfils the requirements of S.110 or that the case is a fit one for appeal to the Supreme Court, the Court has no discretion to refuse leave to appeal and must grant it as a matter of course." Soni J. agreed with Bhandari J. But Kapur, J. who was the third member of the Full Bench expressed some doubt as to the question whether an appeal under S.109(c) was one as of right. The Patna High Court also in - ' AIR 1952 Pat 341 (J)', agreed on this point with the view taken by the Punjab High Court. The Patna High Court also in - ' AIR 1952 Pat 341 (J)', agreed on this point with the view taken by the Punjab High Court. In the Patna case Das J. has adopted the reasons given by Bhandari J. for holding that no distinction can be drawn whatsoever between appeals which can be preferred under any of the three clauses of S.109 read with S.110, Civil P.C. With very great respect to the learned Judges of the Punjab and Patna High Courts, I think the view taken by the Nagpur High Court is correct. 12. As I have already said the provision that leave to an appeal to the Supreme Court has to be obtained in all appeals under Art.133 does not indicate that there is no distinction between appeals under sub-cls.(a) and (b) and sub-cl.(c). The distinction arises not because of the comparative ease or difficulty with which the requirements of sub-cls.(a), (b) or (c) can be satisfied for obtaining the leave. It arises because whereas under sub-cl.(a) or (b) of Art.133(1) on proof of the existence of the prescribed monetary value and of a substantial question of law where the decree ought to be appealed from is one of affirm-ance, a person becomes entitled to appeal as a matter of law, the appeal under sub-cl.(c) is not dependent on the existence or non-existence of any conditions, but on the discretion of the Court. It is true the Court has to exercise its discretion judicially. But the manner in which the discretion is to be exercised cannot convert the discretion vested in the Court into a right of a party so as to compel the Court to exercise the discretion in his favour on his showing certain conditions. 13. Considerable stress has been laid in the Punjab decision on the words "an appeal shall lie to the Supreme Court" which occur in S.109, Civil P.C. and it has been observed that the only construction that may reasonably be placed on these words is that a person who satisfies any one or more of the conditions specified in Ss.109 and 110, Civil P.C. is entitled to claim that leave must be given to him as a matter of right. I must confess, I am unable to see how the words referred to above bear the construction put on them by the learned Judges of the Punjab High Court. I must confess, I am unable to see how the words referred to above bear the construction put on them by the learned Judges of the Punjab High Court. In my opinion, the expression "an appeal shall lie to the Supreme Court" as used in S.109, Civil P.C. or in Art.133 of the Constitution of India means in the context of those provisions no more than this: that if a person has obtained the requisite certificate, he can go to the Supreme Court in appeal and the Supreme Court shall have jurisdiction to entertain the appeal. A distinction has to be drawn between "the power of appeal to the Supreme Court" and "the authority of the High Court to grant leave to do so". A certificate from the High Court being necessary in all cases in determining whether an appeal under sub-clause (a), (b) or (c) of Cl.(1) of Art.133 or under any of the clauses of S.109 read with S.110, Civil P.C., is an appeal as of right, the point to be considered is not whether the litigant can as a matter of right go to the Supreme Court after having obtained the certificate; but it is whether he can claim that under any of those clauses leave to appeal must be given to him as a matter of right. The expression "an appeal shall lie to the Supreme Court" as used in Art.133 or S.109, Civil P.C., has no reference at all to the grant or refusal of leave to appeal under those provisions. I do not think that from the fact a person acquires a right of appeal to the Supreme Court after having obtained a certificate under sub-clause (c) of Cl.(1) of Art.133, it can reasonably be inferred that he is entitled to claim that leave to appeal under this sub-clause must be given to him as a matter of right. If as I have already shown, he is not so entitled, then clearly the appeal under sub-cl.(c) of Art.133(1) is not an appeal as of right. 14. If as I have already shown, he is not so entitled, then clearly the appeal under sub-cl.(c) of Art.133(1) is not an appeal as of right. 14. A reference has also been made in - 'AIR 1952 Puni 103 (E), to a Privy Council case reported in - ' AIR 1927 PC 242 (C)',and it has been said that in this case the Privy Council regarded the appeal provided by sub-cl.(2) of S.66-A, Income Tax Act, 1922 from any judgment of the High Court delivered on reference made under S.66 of the Act to it, if the High Court certifies the case to be a fit one for appeal to the Privy Council, as "a statutory right of appeal". Here again, if the distinction between "the power of an appeal to the Privy Council" and "the authority of the High Court to grant leave to do so" is borne in mind, it becomes clear that the statutory right of appeal referred to by the Privy Council is the one which the litigant acquires after having obtained the leave to appeal. The precise question which is under our consideration did not at all arise in the Privy Council case. The question that was considered by their Lordships of the Privy Council was whether the reference to the Civil P.C. in sub-s.(3) of S.66-A, Income-tax Act was made in terms sufficiently comprehensive to include within the class of appealable cases all that are defined in the provisions of the Code relating to appeals to the Privy Council. Their Lordships held that the words of qualification "so far as may be" in sub-s.(3) are apt to confine the statutory right of appeal to the cases described in sub-s.(2). It is thus clear that the question whether an appeal under cl.(a), (b) or (c) of S.109 read with S.110 of the Code is an appeal as of right or one dependent on the discretion of the High Court was not for decision before their Lordships. The Privy Council case cannot, therefore, he taken as an authority to support the proposition that a litigant is entitled to claim leave to appeal under cl.(c) of S.109 as a matter of right and that, therefore, the appeal provided for by this sub clause is an appeal as of right. The Privy Council case cannot, therefore, he taken as an authority to support the proposition that a litigant is entitled to claim leave to appeal under cl.(c) of S.109 as a matter of right and that, therefore, the appeal provided for by this sub clause is an appeal as of right. The Privy Council case must be considered in the light of the facts of that case and it would not be correct to extract from it a proposition on a point which was not presented to their Lordships for decision. After all a case is only an authority for what it decides. See - "Quinn v. Leathem', (1901) AC 495 (O). 15. In this connection it may be noted that the distinction drawn by Hidayatullah J., in - 'AIR 1951 Nag 177 (I), between appeals to the Privy Council as of grace, as of right and at the discretion of the High Court is supported by a clear authority of the High Court of Australia in the - Commonwealth and another v. Mimerick Steamship Co, Ltd.', 35 CLR 69 (P), which recognizes the distinction. In the - 'Australian case', the question for determination was whether S.39(2)(a) of the Judiciary Act, 1903-1920 had the effect of excluding an appeal as of right to the Privy Council from a decision of the Supreme Court of New South Wales exercising Federal jurisdiction, and of giving to the High Court jurisdiction to entertain an appeal from such a decision. While considering this question Starke J., observed as follows: "It is essential in the first place, to determine whether this Court can entertain the appeals made to it - whether they are competent. This question depends upon the nature of the authority and jurisdiction conferred upon the Supreme Court of New South Wales. "The king in virtue of his prerogative has", as Bentwich says (Privy Council Practice, p.36) "authority to review the decisions of all Colonial Courts and all Courts on which British jurisdiction has been conferred, whether the proceeding be of a civil or criminal character, unless His Majesty has parted with such authority". In such cases leave to appeal is sought as an act of grace. But, in addition His Majesty has issued, "either by virtue of the royal prerogative or in pursuance of enabling statutes" Orders-in-council granting an appeal as of right in certain cases, and at discretion in other cases. In such cases leave to appeal is sought as an act of grace. But, in addition His Majesty has issued, "either by virtue of the royal prerogative or in pursuance of enabling statutes" Orders-in-council granting an appeal as of right in certain cases, and at discretion in other cases. And authority has been conferred upon the Supreme Court of the British possessions to give leave to appeal in accordance with the terms of the grant. Again, some of the self-governing possessions have, in virtue of other Constitutional powers granted rights of appeal to His Majesty in Council and given jurisdiction and power to their own Courts to give the necessary leave. An instance may be found in the Supreme Court Act 1915 of Victoria, S.232; and see - 'Goldring v. La. banque d Hochelaga', (1880) 5 AC 371 (Q); - 'E.W. Gillet and Co. v. Lumsden', (1905) AC 601 (R). The appeal in all these cases is by right of grant and the jurisdiction and power of the local Courts is limited by the grant. Even if leave to appeal has been given by the local Courts, still that "does not make the thing light if it ought not to have been done" - 'Macfariane v. Laclaire', (1862) 15 Moo PC 181 (S); - 'Sauvageau v. Gauthier', (1873) LR 5 PC 494 (T); - 'Allan v. Pratt', (1888) 13 AC 780 (U);- 'Goldring v. La Banque d' Hochelaga; - 'E.W. Gillet and Co. v. Lumsden', (Q)." To the same effect are the observations of Isaacs and Rich, JJ. 16. Before I conclude, I must consider the Full Bench decision of the Patna High Court in - ' AIR 1952 Pat 341 (J). This decision while agreeing with the view taken by the Nagpur and Punjab High Courts that a rule laying down the powers of a Single Judge is a rule of practice and procedure as to the internal arrangement within the Court for disposal of cases, does not accept the distinction made by Hidayatullah J., between appeals which fall under Cls.(a) and (b) of S.109 and appeals which come under cl.(c) of S.109 and dissents from both the Nagpur and Punjab High Courts on the point of the effect of a change in a rule with regard to the powers of a Single Judge or Division Bench on the right of appeal to the Supreme Court. It holds that a change in such a rule whereby an appeal instead of being heard by a Division Bench is heard by a Single Judge does not at all affect the right of appeal given under Art.133 of the Constitution of India read with Ss.109 and 110, Civil P.C. The material observations are in para 19 of the lodgment. In this para Das J. has observed.: "Unless it is predicated that a party appealing to the High Court under S.100, Civil P.C. has a vested right to be heard by two Judges, a change in the rules relating to the powers of a Single Judge does not take away or affect the right of appeal given to the party by the Statute. The nature of, the right given by the Statute has to be kept in mind. The right is to ask for a certificate that the appeal fulfils the requirements of S.109 or S.110, Civil P.C., but the right is only given in such cases as are heard in the High Court by two or more Judges: there is no such right in a case which is heard by a Single Judge, these being a, different right of appeal with regard to Single Judge decisions under Cl.10, Letters Patent. If it is conceded that no party has a vested right to be heard by two or more Judges in the High Court, it follows as a necessary corollary that a change of rules with regard to the powers of a single Judge does not affect the right of appeal given by the Statute. That right still remains the same as before. All that happens is that the Statutory prohibition under S.111, Civil P.C., now cl.(3) of Art.133 of the Constitution, comes into operation." 17. With very great respect to the tearned Judge, I do not find myself in agreement with this view. That right still remains the same as before. All that happens is that the Statutory prohibition under S.111, Civil P.C., now cl.(3) of Art.133 of the Constitution, comes into operation." 17. With very great respect to the tearned Judge, I do not find myself in agreement with this view. To me, it seems that when no appeal lies to the Supreme Court from the decision of one Judge of a High Court and when a litigant is entitled to claim that leave to appeal from decision of a Division Bench must be given to him as a matter of right under sub-cl.(a) or (b) of Art.133, it is difficult to say that this right of appeal to the Supreme Court is not in any way interfered with by the change in the rule of the Court whereby an appeal is heard by a Single Judge instead of by two Judges. No doubt a person can with the leave of the High Court appeal from the decision of the single Bench to a Division Bench of the Court in Part A States under the Letters Patent of the High Court and here under S.23, Madhya Bharat High Court Act and then he can appeal to the Supreme Court from the decision of the Division Bench. But if his appeal could formerly be heard straightway by a Division Bench, then to tell him that under the new procedure also he has a right of taking an appeal to the Division Bench from a decision of a Single Judge and then of appealing to the Supreme Court, is clearly to clog with a condition the right of appeal to the Supreme Court which the party had before the alteration in the rule. A rule of the High Court providing for the exercise of its appellate jurisdiction by one or more Judges is certainly a rule of procedure. But from this it does not follow as a necessary corollary that a change in the rule cannot in any way affect a substantive right of a litigant. A procedure may be of such a character as to affect a substantive right by a change in it. It may then become necessary to keep the procedure intact to preserve the substantive right. A procedure may be of such a character as to affect a substantive right by a change in it. It may then become necessary to keep the procedure intact to preserve the substantive right. In these circumstances to say that an appeal must be heard by a Division Bench as under the old rule in order to preserve a right of appeal to the Supreme Court, is not to assert first the premise that a party has a vested right to be heard by two Judges and then from the premise come to the conclusion that the right of appeal is a substantive right. It is rather the other way. The right of appeal is a substantive right quite independent of any procedure surrounding it and the real question that one has to consider is not whether in abstract the rule of a Court providing for the hearing of the appeal by one or two Judges is a rule of procedure in which no party has a vested right; it is whether a change in it affects a substantive right of appeal to the Supreme Court. 18. On a careful consideration of the provisions of Art.133 read with Ss.109 and 110, Civil P.C., I am disposed to think that the appellant has no right of appeal to the Supreme Court under sub-Cls.(a) or (b) of Cl.(1) of Art.133 and that he would not be entitled, to claim that leave to appeal under sub-cl.(c) must be given to him as a matter of right. That being so, the alteration in the rule of this Court about the Jurisdiction of the Single Judge and the Division Bench does not affect any substantive right of the appellant to appeal to the Supreme Court. The new rule must, therefore, govern the hearing of this appeal as also of all appeals arising out of cases instituted before the rule came into force. This conclusion could not of course be applied to appeals satisfying the requirements of Art.133(1), (a) or (b) as regards amount or value, if the rule had been so altered as to provide for the hearing of such appeals by a single Judge instead of Division Bench. As it is such appeals are today heard, as heretofore, by a Division Bench. 19. SHINDE, C.J. - I agree. 20.MEHTA, J.I concur and have nothing to add.