# DEDH NATHU RAJA (DEAD) BY L. RS v. L. ANGHA NATHU .JAMAL (DEAD) BY L. RS & ORS

- **Citation:** [1970] 2 S.C.R. 434
- **Court:** Supreme Court of India
- **Decided:** 1969-09-16
- **Case number:** Civil Appeal No. 1456 of 1966
- **Bench:** J. C. Shah, Y. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dedh-nathu-raja-dead-by-l-rs-v-l-angha-nathu-jamal-dead-by-l-rs-ors-4839
- **Pages:** 11

## Headnote

Practice and Proce1iure-States Reorganisatio11 Act (37 of 1956), ss.
52, 57 ·and 59-lligh Court in Part B State of Sc.urashtra-Appeal from
Judg111ent to single judge 10 Division Bench perrnissible only with certificate-Part B State n?erg-cd wi~1h State ot' 80111bay and High Court in Part
B Srate abolishcd-Prvceedings transferred to
Bo111bay
High
CourtLetters P£1tent, Cl. 15-Judginent of single Judge in first appoof" appealab/e
lVithout certificate-f~irst appeal to High Court in Part B State-Disposed
of by single Judge of Bombay High Court after merger-Whether appeal
to Division Bench lies without certificate.
Under s. 22A(2) of the Saurashtra Ordinance No. 2 of 1948, an appeal
lay I<> a Division Bench of· the Saurashtra High Court from a judgment of
a single Judge of that High Court in the exercise of its appellate jurisdic~
tion, i.f the Judge certified that t'.e c<is~ was a fit one for appeal.
The
States Reorganisation Act, 1956, merged the Part 'B' State of Saurashtra
into the State of Bombay, abolished the High Court of Saurashtra as from
November l, 1956, and transferred the proceedings pending before the
High Court of Saurashtra to the Hig'.1 Court of Bombay. Section 52 of the
Act conferrtd upon the H;gh Court oi Bon1bay, after November 1. 1956.
the original, appellate and other jurisd~ct;o., which was exercised by the
High Court of S1urashtra imme.diat~ly p.:-ior to that date in respect of the
territories in the State of Saurashtra.
The Saurashtra Ordinance No. 2
of of 1948 was repealed with effect from Nwernber I. 1956. by the Saurashtra (Adaptation of Laws on Union Subjects Order, 1957. and
the
Rules and orders relating to practice a:id procedure framed hy
t:~-: lligh
Court of Saurashtra \Vere abrogated as from November 1, 1956 by rules of
the High Court of Bombay niade unde.r s. 54 of the State Reorganisation
Act. 1956. .The effect of s. 57 of the S ate~ Reo;·ganisation Act is that the
pO\l,'Cf5 of a Division B.znch of the High (,ourt for the new State of Bombay
shali bL the. same as the pO\.vers of the Division Bench under the law in
force immediately hcforc November I. 1956, in the State of Bombay.
Clause J 5 of the l.ett~rs PJtent of the Hi!!h Court of Bombay, which \Vas
la\I.' in force immediately before Noven1ber l. 1956. in the State of
Bombay, provides that an appeal fron1 the judgment of a single Judge of
the Bcmbay High Court. in a first appeal from a judgment of the Subordi~
nate Court, could be filed without a certific:tte of the Judge hearing the
first appeal.
Clause 15 of the Lett:!TS Patent of the Bombay High Court
applied also to the Gujarat High Court \vhich was establi<.h1:d as a result
of the Bombay Redrganisation Act. 1960.
A first appeal against a decree of a subordinate court in Saurashtra,
pending in the Saurashtra H!gh Court on November l, 1956. was transferred
to the High Court of Bombay, and disposed cf by a single Judge of the
B·.Jmbay High Court.
An nopeal to the Division Bench under Cl. 15 of
the Letters Patent of the High Court of Bon1bay. V/as transferred
to
th~ Gujarat High Court after its establishment. but t\-:e Gujarat High Court
held that the anceal was incompetent under s. 22A of the S:iurashtra Ordinance No. 2 of 1948 without a certificate from the single Judgo.
A
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D, N. RAJA V. L. A. N. JAMAL (Shah, /.)
435In appeal to this Court,
,
HELD: (1) Ii was only in the absence of any provision to the contrary, that a right attached to the action when it was commenced in the
subordinate court in Saurashtra that an appeal against the decision of the
single Judge of the High Court of Saurashtra in appeal, shall lie only if the
single judge certified that it was a fit case for appeal to a Division Bench.
Garikapatti Veerayya v. N. Subbiah Choudhury, [1957] S.C.R. 488,
referred to. [443 A-Bl.
(2) But, from November 1, 1956, the Saurashtra High Court
was
abolished, the Saurashtra Ordinance No. 2 of 1948 was repealed, and the
jurisdiction of the High Court of Saurashtra

## Text

DEDH NATHU RAJA (DEAD) BY L. RS.
V.
L. ANGHA NATHU .JAMAL (DEAD) BY L. RS & ORS.
September 16, 1969
[J. C. SHAH, Y. RAMASWAMI AND A. N. GROVER, JJ.]
Practice and Proce1iure-States Reorganisatio11 Act (37 of 1956), ss.
52, 57 ·and 59-lligh Court in Part B State of Sc.urashtra-Appeal from
Judg111ent to single judge 10 Division Bench perrnissible only with certificate-Part B State n?erg-cd wi~1h State ot' 80111bay and High Court in Part
B Srate abolishcd-Prvceedings transferred to
Bo111bay
High
CourtLetters P£1tent, Cl. 15-Judginent of single Judge in first appoof" appealab/e
lVithout certificate-f~irst appeal to High Court in Part B State-Disposed
of by single Judge of Bombay High Court after merger-Whether appeal
to Division Bench lies without certificate.
Under s. 22A(2) of the Saurashtra Ordinance No. 2 of 1948, an appeal
lay I<> a Division Bench of· the Saurashtra High Court from a judgment of
a single Judge of that High Court in the exercise of its appellate jurisdic~
tion, i.f the Judge certified that t'.e c<is~ was a fit one for appeal.
The
States Reorganisation Act, 1956, merged the Part 'B' State of Saurashtra
into the State of Bombay, abolished the High Court of Saurashtra as from
November l, 1956, and transferred the proceedings pending before the
High Court of Saurashtra to the Hig'.1 Court of Bombay. Section 52 of the
Act conferrtd upon the H;gh Court oi Bon1bay, after November 1. 1956.
the original, appellate and other jurisd~ct;o., which was exercised by the
High Court of S1urashtra imme.diat~ly p.:-ior to that date in respect of the
territories in the State of Saurashtra.
The Saurashtra Ordinance No. 2
of of 1948 was repealed with effect from Nwernber I. 1956. by the Saurashtra (Adaptation of Laws on Union Subjects Order, 1957. and
the
Rules and orders relating to practice a:id procedure framed hy
t:~-: lligh
Court of Saurashtra \Vere abrogated as from November 1, 1956 by rules of
the High Court of Bombay niade unde.r s. 54 of the State Reorganisation
Act. 1956. .The effect of s. 57 of the S ate~ Reo;·ganisation Act is that the
pO\l,'Cf5 of a Division B.znch of the High (,ourt for the new State of Bombay
shali bL the. same as the pO\.vers of the Division Bench under the law in
force immediately hcforc November I. 1956, in the State of Bombay.
Clause J 5 of the l.ett~rs PJtent of the Hi!!h Court of Bombay, which \Vas
la\I.' in force immediately before Noven1ber l. 1956. in the State of
Bombay, provides that an appeal fron1 the judgment of a single Judge of
the Bcmbay High Court. in a first appeal from a judgment of the Subordi~
nate Court, could be filed without a certific:tte of the Judge hearing the
first appeal.
Clause 15 of the Lett:!TS Patent of the Bombay High Court
applied also to the Gujarat High Court \vhich was establi<.h1:d as a result
of the Bombay Redrganisation Act. 1960.
A first appeal against a decree of a subordinate court in Saurashtra,
pending in the Saurashtra H!gh Court on November l, 1956. was transferred
to the High Court of Bombay, and disposed cf by a single Judge of the
B·.Jmbay High Court.
An nopeal to the Division Bench under Cl. 15 of
the Letters Patent of the High Court of Bon1bay. V/as transferred
to
th~ Gujarat High Court after its establishment. but t\-:e Gujarat High Court
held that the anceal was incompetent under s. 22A of the S:iurashtra Ordinance No. 2 of 1948 without a certificate from the single Judgo.
A
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D, N. RAJA V. L. A. N. JAMAL (Shah, /.)
435In appeal to this Court,
,
HELD: (1) Ii was only in the absence of any provision to the contrary, that a right attached to the action when it was commenced in the
subordinate court in Saurashtra that an appeal against the decision of the
single Judge of the High Court of Saurashtra in appeal, shall lie only if the
single judge certified that it was a fit case for appeal to a Division Bench.
Garikapatti Veerayya v. N. Subbiah Choudhury, [1957] S.C.R. 488,
referred to. [443 A-Bl.
(2) But, from November 1, 1956, the Saurashtra High Court
was
abolished, the Saurashtra Ordinance No. 2 of 1948 was repealed, and the
jurisdiction of the High Court of Saurashtra was conferred upon the
Bombay High Court.
Therefore, the single Judge of the. High Court who·
heard •he first appeal, heard it not as a Judge of the Saurashtra High Court,
but as a Judge of the Bombay Court. [ 443 B-C]
{3) Section 52 of the States Reorganisation Act, 1956 does not mean
that the jurisdiction conferred upon the Bombay High Cou'rt in respect
of the territories within the State of Saurashtra WG:·s to be regulated with
reference to the law which was in force on November 1, 1956 in Saurashtfa.
Therefore, it dois not incorporate either expressly or by implication the
limitations prescribed by s. 22A(2} of the Saurashtra Ordinance into the·
Letters Patent of the High Court. [443 G-H; 444 C-D]
( 4} Sine~ the restriction placed by s. 22A of the Ordinance applied
only to a iudg1nent cf a single Judge of the High Court of Saurashtra and
could not apply to a judgment of a single-Judge of the, Bombay High Court,
and could not operate to restrict a right of appeal exercisable under CI. 15
of the Letters Patent, the iudgment of the single Judge of the Bombay
High Court \\·as, under s. 57 of the States Reorganisation Act, subject to
apoeal i:o a Division Bench \Vithout a certificate of the single Judge. [443
D-FJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1456 of
1966.
Appeal from the judgment and order dated April 6, 1964 of
the Gujarat High Court in Letters Patent Appeal No. 8 of 1960.
F
D .. U. Shah, P. C. Bhartari and J. B. Dadadwnji, for the·
G
ff
appellants.
S. K. Dho/akis and
Vineet Kumar, for resp0:ndents Nos.
!(a) to l(e) and (g).
The Judgment of the Court was delivered by
Shah, J.-The facts which give rise to thise appeal are few
and simple.
The appellant commenced on May 3, 1951
an
action in the Court of the Assistant Judge, Morvi, in the former
Part 'B' State of Saurashtra for a decree for Rs. 9,387/5/- against
one L. Angha Nathu Jamal and respondents 2 & 3 in this appeal.
The Trial Court decreed the suit on October 17, 1955.
An appeal
was filed against the decree in the High Court of Saurashtra at
Rajkot.
On November 1, 1956, the High Coutt of Saurashtra
was abolished and the proceedings pending in that Court stood'
transferred to the High Court of Bombay.
On F~bruary 21,.
436
SUPREME COURT REPORTS
[1970] 2 S.C.R.
1958, Vyas, J., of the High Court of Bombay allowed the Jppeal.
·Against that order a'n app_eal under Cl. 15 of the Letters Patent of
the High Court of Bombay was filed by the plaintiff but without
an order of Vyas, J., certifying that the case was fit for appeal
to a Division Bench of the High Court.
On May 1, 1960 under
the Bombay Reorganisation Act 1960, the appeal stood transferred to the High Court of Gujarat.
The High Court of Gujarat
held that the appeal was incompetent in the absence of an order
under S. 22A of the Saurashtra Ordinance 2 of 1948 certifying
that the case was fit for appeal to a Division Bench.
With certificate granted by the High Court of Gujarat this appeal has been
preferred.
The Rulers of Indian States in Kathiawar agreed "to·unite and
fategrate" their territories in one State to be styled the United
State of Saurashtra with a common executive, legislature
and
judiciary.
By Ordinance 1 of 1948 the administration of the
covenanting States was taken
over by the
Rajpromukh.
The
Rajpramukh issued, in exercise of power reserved to him by Art.
9 cl. (3) of the Covenant, Ordinance 2 of 1948 'etting up with
effect from February 29, 1948, a High Court of Judicature for
the State of · Saurashtra.
The expression "High
Court"
was
defined in s. 3 ( c) as meaning "the High Court established and
·constituted by this Ordinance and functioning as the High Court
of the Saurashtra State.
By s. 21 the High Court was to be the
highest Court of appeal and revision in the State and to have
jurisdiction to maintain and dispose of such appeals, revision and
other cases, civil or criminal, as it may be empowered to do under
the Ordinance or any enactment in force in the S!ate.
By s. 22
1he High Court was also to be a Court of reference with power to
hear, revise and determine all cases referred to it· By Ordinance
5 of 1950 s. 22A was added : it was provided thereby :
"(1) Except as otherwise provided by any enactmen~ for the time being in force, an appeal from any
original decree, or from any order against which
an
appeal is permitted by any law for the time being in
force, or from any order under Article 226 of the Constitution of India, made by a single Judge of the High
Court, shall lie to a Bench consisting of two
other
Judges of the High Court.
(2) An appeal shall lie from a judgment of one
Judge of the Hig~ Court in respect of a decree or order
made in exercise of Appellate Jurisdiction to a Bench
consisting of two other Judges of the High Court if the
Judge who made the decree or order certifies that the case
'is a fit <me for appeal."
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D, N, RAJA V. L. A. N. JAMAL (Shah, J.)
437
A
Under
the
Constitution
of
India,
the
territory
of
8
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the United State of Saurashtra was formed into a Part 'B' State of
Saurashtra.
By the States Reorganisation Act 1956 the territory
of the State of Saurashtra merged into the State of Bombay.
By s. 49 of the States Reorganization Act, 1956, it was enactc)l that the High Court exercising immediatezy before the appointed
day, j.urisdiction in relation to the existing State of Bombay sha!l,
as from the appointed day, be deemed to be the High Court for the
new State of Bombay.
By s. 50(1) as from the appointed day,
the High Courts of all the existing Part B States (with certain
exc€ptions not material)
were to cease to function 21nd
were
abolished. By section 52 was provided :
"The High Court for a new State shall have, in
respect of any part of the territories included in that new
State, all such original, appellate and other jurisdiction
as, under
the law in force immediately before the
appointed day, is exercisab.Ie in respect of that part of
the said territor:es by any High Court or Judicial Commissioner's Court for an existing State".
By s. 54 it was provided :
"Subject to the provisions of this Part, the law in
force immediately before the appointed day with respect
to practice and procedure in the High Court for the
corresponding State shall, wirh the necessary modifications, apply in relation to the High Court for a new State,
and accordingly, the High Court for the new State shall
have all such powers to make rules 'and orders with
respect to practice. and procedure as are, immediately,
before the appointed day, exercisable by the High Court
for the cor~esponding State :
1
'
Provided that any rules or orders which are in force
immediately before the appointed day with respect to
practice and procedure in the High Court for the corresponding State shall, until varied or revoked by rules or
o~ders made by the High Court for a new State, apply
with the necessary modifications in relation to practice
and procedure in the High Court for lhe new State ns if
made by that Court" .
. Section 59(3) provided that all proceedings pending in the
J!:igh Court of Saurashtra or in the Court of the Judicial Commissioner for Kutch immediately before the appointed day shall ,t~md
transferred to the High Court of Bombay.
By s. 119 it was
provided:
·
"The provisions of Part II shall not be deemed to
have effected any change in the territories to which any
L2Sup.C!/70-6
SUP~EME COURT REPORTS
( 1970] 2 S.C.R.
law in force
immediately before the appointed day
extends or af11plies, and territorial references in any such
law to an existing State shall, until otherwise provided
by a competent Legislature or other competent authority,
be construed as meaning the territories within that State
immediately before the appointed day."
Section. 127 provided :
"The provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in
any other law.''
In exercise of the power conferred upon the Central Government by s. 120 of the States Reorganisation Act, 1956, the
Saurashtra (Adaptation of Laws on Union Subjects) Order, 1957,
was promulgated by the Central Govt.
By cl. 3 or the order it
was provided that Saurashtra Ordinance 2 of 1948 shall stand
repealed with effect from November 1, l 956.
The High Court
of Bombay for the new State added rr. 252-A and 252-B to the
Rules of the High Court of Judicature at Bombay, Appel!ate Side,
1950.
By r. 252-A it was provided :
"Rules and orders relating to practice and procedure
in the High Court in force immediately prior to the
appointed day in the High Court of Bombay shall,
subject to modifications made from time to time thereto,
apply to the practice and procedure in the High Court."
Rule 252-B provided :
"Rules and orders relating to practice and procedure
in the High Court framed by the High Courts of
Nagpur, Hyderabad and Saurashtra and Judicial Commissioner's Court, Kutch, shall stand abrogated as from
the !st November 1956 in the areas of the new State of
Bombay which before the !st November 1956 were parts
of the States of Madhya Pradesh, Hyderabad, Saurashtra
and Kutch."
The High Court of Gujarat held that the appeal filed by the
respondents in the High Court of Saurashtra against the judgment
of the Assistant Judge, was and continued to remain subject to
the provisions of s. 22A of Saurashtra Ordinance 2 of 1948 and an
appeal could lie against the decision of Vyas J., only if he certified
that the case was fit for appeal to a Division Bench.
Clause 15
of the Letters Patent of the Bombay High Court provided :
"And we do further ordain that an appeal shall lie
t<' the said High Court of Judicature at Fort William in
Bengal from the judgment (not being a judgment passed
in the rxercise of appellate jurisdiction in 1espect of a
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D. N, RAJA v. L.A. N. JAMAL (Shah, /.)
~3~
decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the
said High Court, and not being an order made. m the
exercise of revisional
jurisdiction and not bemg a
sentence or order passed or made in the exercise of tl!.e
power of superintendence under the provisions of s. 107
of the Government of India Act or in the exercise of
criminal jurisdiction) of one Judge of the said High
Court or one Judge of any Division Court, pursuant to
section 108 of the Government of India Act, and that
notwithstanding
anything hereinbefore provided
an
appeal shall lie to the said High Cot.rt from a judgment
of one Judge of the said High Court or one Judge of any
Division Court, pursuant to section 108 of, the Government of India Act made on or after the first day of
February 1929) in the exercise of appellai·~ jurisdictioH
in respect of a decree or order made in the exercise of
appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who
passed the judgment declares that the same is a fit one
for appeal; but .
.
.
.
. right of appeal from
other judgments of Judges of the said High Court or of
such Division Court shall be to Us, Our Heirs or Successors ..
"
By cl. 15 of the Letters Patent a judgment in an appeal from a
civil suit by a single Judge of the High Court of Bombay is
subject to appeal to a Division Bench except when the order is
made in exercise of the revisional jurisdiction of the Court or in
second appeal, or
in exercise of criminal
jurisdiction, or in
exercise of power of superintein,dence under s. 107 of the Government of India Act, 1935 (Art 227 of the Constitution). Vyas,
J., decided the appeal• sitting as a Judge of the High Court of
Bombay:
Prima facie, his jud&ment delivered in a first
appeal
from a 1udgment of the subordmate court was subject to appeal
to a Division Bench of the High Court of Bombay.
There was clearly an inconsistency between s. 22A of the
Saurashtra Ordinance 2 of 1948, and cl. 15 of the Letters Patent
of tbe High Court of Bombay.
By virtue of s. 22A(2)
an
appeal lay to a Division Bench of the Saurashtra High Court from
a judgment of one Judge "in respect of a decree or order made in
exercise of Appellate Jurisdiction when the Judge who made the
decree or order certified ~hat.the case is a fit one for appeal". The
Legislature made no d1stmct10n between a first appeal, a second
app~~l, an ~pl'.ea~ f~om order 11nd an application in exercise of
rev1s10nal
1unsd1ct1011
But an appeal under cl. 15 of the
HO
SUPJlEME COURT REPORTS
[1970] 2 S.C.R.
Letters Patent of the High Court of Bombay in an appeal from
the judgment of the Court of First Instance could be filed without
a certificate of the Judge hearing the appeal.
The right to appeal from a decree or order is a substantive
right.
As a corollary thereto, the right to maintain a decree of a
Court without interference by a superior Coart and subject only
to the limitation therein is also a vested right and may be taken
away by express enactment or clear implication of the amending
statute.
In Colonial Sugar Refining Company v. Irving(') the
.TuJicial Committee held that a provision which deprives a suitor
in a pending action of an appeal to a superior tribunal which
belonged to him as of right does not regulate procedure. The
Australian Commonwealth Judiciary Act, 1903, came into force
on August 25, 1903.
Against the. judgment of the Supreme
Court of Queensland in an action commenced on Oct. 25, 190'.:'.
an application was made jar leave to appeal to the Judicial Committee and J~ave was granted on September i, 1903.
At the
hearing of the appeal by the Judicial Committee the rc:wondenb
applied that the appeal from the judgment of the Supreme Court
of Queensland be dismissed on the ground that the power of th"
Court below to give leave to appeal stood abrogated by s. 39 or
the Australian Commonwealth Judiciary Act, 1903.
The :;pplication was rej~cted by the Judicial Committee.
Lord Macnaghten
obocrved:
·'As regards the general principles applicable lO ;he
case there was no controv~rsy. On the one hand it was
not disputed that if the matter in question be a matter of
procedure only, the petition (to dismiss) is well founded.
On the other hand, if it be more than a matter of procedure, if .it. touches ~ right in existence at the passing
of the Judrcrnry Act, 11 was conceded that in accordanc"
with a long line of authorities from the time of Lord
Coke to the l_lresent day the appellanls (the Sugar Co.)
would be entllled to succeed.
The Judiciarv Act is n0t
retrospective by express
enact111ent or bY nccessarv
intendment.
And therefore. tlic only question ic.. WJ·,
the appeal to His Majesty in Council a right vested in the
appellants at the date oi the passing of the Act, or was
it a mere matter of
pro(;eclure 9
It seems to their
Lordships that the question does not admit of doubt.
To dcrrive a suitor in. a pending action of an appeal to
a mpcnor tnbunal which belonged to him as of right is a
\'cry different thing from regulating procedure"."
··-
--- ----
(!\ [1905] A.C. J69.
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H l
ln Garikapatti Veeraya v. N. Subbiah Choudhury('), this Court
ac<:cpted the principle in
Colonial Sugar [{e{ining Company';
case('). In the absence of any provision to the contrary, therefore, a right attached to the action when it was commeuced in
1951, that an appeal against the decision of a single Judge of the
High Court of Saurashtra shall lie only if the Judge deciding the
8
case certificJ the case to be a fit one for appe,1!. But the Saurashtra
High Court was abolished from November 1, 1956 and the jurisdiction of the Saurashtra High Court was conferred upon the Bombay High Court.
The case was tried by Vyas, J., not as a Judge
of the Saurashtra High Court but as a Judge of the High Court of
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Bombay.
In terms the restriction placed by s. 22A applies to a
judgment of one of the Judges of the High Court c1 Saurashtra :
it does not apply to a judgment of a Judge of the High Court of
Bombay.
Once the Saurashtra Ordinance 2 of 1948 was repealed
aud the jurisdiction to try the appeal was conferred upon the High
Court of Bombay, the right of appeal exercisable by the parties to
the litigation decided by the High Court of Bombay was governed
by the Letters Patent of that court nad not by s. 22A of the Saurashtra Ordinance 2 of 1948. Granting that the incident prescribed
by s. 22A continued to 'attach to the action, in terms s. 22A of the
Saurru.htra Ordinance could not operate to restrict a right of appeal
exercisable by cl. 15 of the Letters Patent gover~ing the judgments
of the Judges o~ the High Court of Bombay.
The expression
"Judge of the High Court" in s. 22A of the ordinance for the
purpose of giving effect to the rule in Colonial Sugar Refining
Company's case(') cannot be read as meaning 'a Judge of the
High Court of Bombay. By the clearest implication of the
repeal by the Saurashtra (Adaptation of Laws on Union subjects)
Order, 1957, promulgated by the Central Government and by
the application of cl. 15 of the Letters Patent of the Bombay High
Court, the judgment of Vyas, J.,. was subject to appeal to a DiviF
sion Bench without an order of the Learned Judg~ certifying the
ea&e to be fit for appeal.
·
G
H
In support ofhis submission counsel for the respondents relied
upon the terms of s. 52 of the States Reorganisation Act, l 956.
But that section only confers .uJ?On the High Court of Bombay
aftcer November l, 1956 the ongmal, appellate and other jurisdiction, which was exercisa)>)e by the High Court of Saurnshtra
illll_llcdi~te~y prior to November 1, 1956, in respect.of the tcrritones w1thm the State of Saurashtra. The section does not incorporate either expressly or by im~lication the limitations prescribed
bys. 22A(2) of Saurashtra Ordmance 2 of 1948 into the Letters
Patent .of the High Court of Borr.bay.
The jurisdiction-original
appel!ate a~d other-~hich the High Court of Saurashtra could
exercise pnor to November 1, 1956, survived to the High Court
(~) (19,7] l.C.1'. 4i8.
(21
•<>0,~1 A.C. ~6".
SUPREME COURT REPORTS
[1970) 2 S.C.R.
of Bombay in res.11ect of the territories of the State o~ Saurashtra,
and the appeal filed by the respondent before the HIS!1 <:ourt. of
Saurru.htra was triable in the exercise of the appellate 1unsd1ction
of the High Court of Bombay, after the case stood transferred t.o
·that Court by virtue of sub-s. (3) of s. 59 of the ~tates Reorganization Act, 1956. Vyas, J., functioned as a Judge of the High
Court of Bombay and his judgments in first appeals were, in the
absence of an express provision to the contrary, subject to appeal
under cl. 15 of the Letters Patent to a Division Bench without a
certifi~ate.
The High
Court of Gujarat was right in holding that in
respect of the areas of the fonner Saurashtra State, the High Court
of Bombay acquired the same jurisdiction which the High Court
of Saurashtra possessed.
That however, does not mean that the
jurisdiction was to be regulated "with reference to the law which
was in force on the appointed day i.e. November 1, 1956". Section 52 of the States Reorganisation Act preserved the original,
appellate and oiher .iurisdiction as under the law in force immediately before the appointed day exercisable in respect of the
territories within the State of Saurashtra.
Unless in the exercise
of that jurisdiction any restriction under t.he law then in force was
by express provision or by clear implication preserved, the provisions of cl. 15 of the Letters Patent must apply.
It is necessary to recall the provisions of s. 57 of the States
Reorganisation Act, 1956, which proviC:e that the law in force
immediately before the appointed day relating to the powers of
the Chief Justice, single Judges and division courts of the High
Court fer the corresponding State and with respect to matters
ancillary io the exercise of the powers shall, with the necessary
modification, apply in relation to the High Court for a new State.
Im~ediately before N~vember 1, 1956, Dgainst the judgment of
a smgle Judge of the High Court of Bombay exercising power in a
first appeal, an appeal lay to a Division Bench without a certificate.
The po~er of a. Division Bench to entertain an appeal continued
to remam exercisable by the Judges of the Bombay High Court
w~en dealing with cases tr!lnsferred under s. 59(3) to the Bombay
H1g~ Court from the Saurashtra High Court.
In terms
s. 57
prov1de5 that p_owers of ~e Division Bene)! of the High Court for
the correspondmg State 1.e. the new State of Bombay shall be the
~ame ~ ~e powers of the J?ivision Bench under the law in force
1mmed1ate1y before the appomted day in the State of Bombay
A
Divisio;11 Bench of the .High Court of B9mbay was compete~t to
entenam an appeal agamst the judgment of a single Judge deciding
a fi~t appeal from the decision of a subordinate court without a
certificate of the fodge deciding the appeal.
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D. N. RAJA V. L. A. N. JAMAL (Shah, J.)
443
The High Court of Gujarat have made a distinction between
"power" and "jurisdiction",. and they ~ave held that when ~· 52
of the States Reorganisation Act, 195!>, enacts that the appellate
jurisdiction of the Hi&h Court of Bombay for the new State of
Bombay shall in relation to the Saurashtra area be the ~~~e as the
jurisdiction which the Saurashtra High Court pos~es.se~, 1.t is m~nt
that the High Court of Bombay has the same 1unsd1ct10n winch
the High Court of Saurashtra originaily had, and in exercise of
that jurisdiction is subject to the same limitations which the High
Court of Saurashtra was subject.
We are unable to agree with
that view.
Section 52 of the States Reorganization Act, 1956,
does not say so, and s. 57 of that Act provides to the contrary.
The High Court of Gujarat was also of the view that s. 52 of
the States Reorganisation Act, 1956 "crystalizes the law" only
with respect to the territorial jurisdiction of each of the areas
comprised in the High Court of Bombay, and if the Legislature
extended the jurisdiction of the High Court of Bombay and also
D · retained the jurisdiction which the abolished High Court possessed, the result would be "odd and confiicting"-there being conflict
of jurisdiction. But that, in our judgment, is a ground for holding
that the jurisdiction of the Bombay High Court superseded in case
of conflict, the restrictions on the exercise of jurisdiction by the
original High Court qua the Saurashtra territory, and not that the
jurisdiction of the High Court of Bombay was because of some
unexpressed limitation restricted.
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The High Court of Gujarat recognised that the conclusion to
which they had reached revealed a defect in the administration of
justice. They observed :
"The Legislatune may have had a good reason for
preserving in tact the old jurisdiction of the Saurashtra
High Court in regard to pending cases.
However, our
conclusion affects cases instituted after the Reorganisation Act ca!!le into force. In our judgment, there is no
reason why the litigants from the Saurashtra and Kutch
area~ ~hould. now be treated on a different footing from
the h~gants m the old Bombay area. In our judgment,
the nghts of appeal of litigants in all the areas should
now be placed on the same footing.
We would recommend to the authorities concerned to examine this
qu~tio~ and, if so advised, to undertake the necessary
leg1slation so as to confer the same rights of appeal to
the litigants from the Saurashtra & Kutch areas as are
giv~n to the litigants from the rest of the State of
Guiarat."
444
SUPREME COURT REPORTS
[1970] 2 S.C.R.
In our view the conclusion that the restriction on the "old jurisA
diction of the Saurashtra High Court" iri regard to pending ca~es
was preserved by s. 52 is erroneous.
The States Reorganisation
Act, 1956 does not purport to preserve the restrictions upon the
exercise of jurisdiction, and no implication arises from the use of
the expression "original, appellate and other jurisdiction as under
the law in force immediately before the appointed day", that the
B
limitations upon the exercise
of the jurisdiction which
were
existing prior to November 1, 1956, notwithstanding the provifions of s. 57 of the States Reorganisation Act were preserved.
The order passed by the High Court of Gujarat is set aside.
and the case is remanded to the High Court to be re-entered under
the origin:.! number and to be heard and disposed of according
C
to law.
Costs will be costs in the High Court.
•
V.P.S.
A ppea/ allowed and case remanded.