GARIKAPATI VEERAYA Vs. N SUBBIAH CHOUDHRY

JUDGEMENT

(1.) This is an application for special leave to appear from the judgment passed on 10/02/1955 by the High Court of Andhra. The suit out of which this application arises was instituted on 22/04/1949 in the sub-court of Bapatla, which was then within the jurisdiction of the Madras High Court. The judgment of the trial court was passed on 14/11/1950 dismissing the suit. The plaintiff appealed. On 1/10/1953 the Andhra State was formed and a new High Court was established under S. 28 of the Andhra State Act, 1953 (Act XXX of 1953) , and apparently the appeal stood transferred to the High Court of Andhra under the provision of S. 38 of the same Act. On 4/03/1955 the High Court of Andhra accepted the appeal, reversed the decree of the trial court and decreed the suit. The application for leave to appeal to this Court was dismissed on the ground, inter alia, that the value of the property was only Rs. 11,400 and did not come up to the amount of Rs. 20,000. In this application the petitioner contends that the judgment being one of reversal and the value being above Rs. 10,000, he was entitled as a matter of right, to come up to this Court on appeal and as that right has been denied to him by the High Court, this Court should, in exercise of its discretion, grant him special leave to appeal to this Court under Art. 136 of the Constitution.

(2.) It will be convenient at this stage, to refer to the statutory provisions relating to appeal from any final judgment, decree or order of a High Court in India to a superior court. This was regulated by the provisions of the Letter Patent of each particular High Court. It will suffice for our present purpose to refer to Cl. 39 of the Letter Patent, 1865 relating to the High Courts of the three Presidency towns. Under that clause an appeal could be taken to His Majesty in Council from any final judgment, decree or order of the High Court made on appeal or in exercise of its original jurisdiction by a majority of the full number of Judges of the said High Court or of any Division Court provided, in either case, the sum or matter at issue was of the amount or value of not less than 10,000 rupees or that such judgment, decree or order involved, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than 10,000 rupees or from any other final judgment, decree or order made either on appeal or otherwise as aforesaid when the said High Court should declare that the case was a fit one for appeal to His Majesty in Council. The requirements to be fulfilled for appeal to His Majesty in Council were also set out in Ss. 109 and 110 of the Code of Civil Procedure, 1908. The Government of India Act, 1935 by S. 200 established a Federal Court of India. S. 204 of that Act gave original jurisdiction to the Federal Court with respect to certain matters. S. 205 conferred appellate jurisdiction on the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involved a substantial question of law as to the interpretation of that Act or any Order in Council made thereunder and prohibited direct appeal to His Majesty in Council either with or without special leave in these matters. When the Indian Independence Act, 1947 was passed by Parliament it became necessary to enlarge the jurisdiction of the Federal Court to enable the Federal Court to entertain appeals which previously went to His Majesty in Council. For that purpose was enacted the Federal Court (Enlargement of Jurisdiction) Act, 1947, being Act I of 1948, S. 3 of that Act provided that as from the appointed day i. e. from 1/02/1948, an appeal would lie to the Federal Court from any judgment to which the Act applied without the special leave of the Federal Court, if an appeal could have been brought to His Majesty in Council under the provisions of the Code of Civil Procedure, 1908 or of any other law immediately in force after the appointed day and with the special leave of the Federal Court in any other case and that no direct appeal would lie to His Majesty in Council either with or without special leave from any such judgment. "judgment to which this Act applied" was defined by S. 2 (b) as meaning any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council, either with or without special leave, if that Act had not been passed. By S. 4 all proceedings and steps taken in, and orders made and certificates granted by a High Court in connection with an appeal to His Majesty in Council, unless the records had been transmitted, were to be deemed to be proceedings and steps taken and orders made and certificates granted in connection with an appeal from that judgment to the Federal Court under the Act and would be concluded, or as the case may be, have effect, accordingly. Under S. 5 every application to His Majesty in Council for special leave to appeal from a judgment to which the Act applied remaining undisposed of immediately before the appointed day would on that day stand transferred to the Federal Court by virtue of the Act and would be disposed of by that Court as if it had been an application duly made to that Court for special leave to appeal from the said judgment. This was followed by the abolition of Privy Council Jurisdiction Act, 1949 (Act V of 1949) which was passed by the Constituent Assembly in September, 1949 and came into force on 10/10/1949 which was referred to as the 'appointed day'. S. 2 provided that as from the 'appointed day' the jurisdiction of His Majesty in Council to entertain appeals and petitions from or in respect of any judgment decree or order of any court or tribunal other than the Federal Court within the territory of India including appeals and petitions in respect of criminal matters whether such jurisdiction was exercisable by virtue of His Majesty's prerogatives or otherwise would cease. S. 5 conferred corresponding jurisdiction on the Federal Court, that is to say, as from the 'appointed day' the Federal Court was authorised, in addition to the jurisdiction conferred on it by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947, to have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His majesty in Council had by virtue of His Majesty's prerogatives or otherwise immediately before the 'appointed day'. All proceedings in respect of any Indian appeal pending before His Majesty in Council immediately before the appointed day were by S. 6 to stand transferred to the Federal Court and were to be disposed of by it in the exercise of the jurisdiction conferred on it by the Act.

(3.) It will be recalled that the suit out of which the present petition arises was filed on 22/04/1949. The petitioner contends that as from the date of the institution of the suit he acquired a vested right to appeal to the Federal Court which has since then been replaced by the Supreme Court. In support of this contention he relies on certain judicial decisions to which reference may now be made.