# GARIKAPA TTI VEERAYA v. N. SUBBIAH CHOUDHURY

- **Citation:** [1957] 1 S.C.R. 488
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/garikapa-tti-veeraya-v-n-subbiah-choudhury-1353
- **Pages:** 87

## Headnote

1957
February, I.
488
SUPREME COURT REPORTS
GARIKAPA TTI VEERAYA
v.
N. SUBBIAH CHOUDHURY
[1957]
[S. R. DAS
C. J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs J J.J
Supreme Court, Appellate furisdiction of-Dea·ee in suit insti·
tuted prio1· to the Constitution reversed in appeal by High Court ofter
the Constitution-Value of subject-matter short of twenty-thousandAppeal, if lies-Vested 1·ight of appeal-Constitution of India, Arts.
133, 135.
This application for $pecial leave to appeal arose out of .a
suit instituted on April 22, 1949, and valued at Rs. 11,400. The
Trial Court dismissed the suit and the High Court in appeal
reversed that decision on February
IO, 1955.
Application for
leave to appeal to the Supreme Court was refused by the High
Court on the ground that the value did not come upto Rs. 20,000.
It was contended on behalf of the applicant that he had a vested
right of appeal to the Federal Court under the law as it then
stood and that Court having been substituted by the Supreme
Court, he was as of right entitled to appeal to that Court under
Art. 135 of the Constitution.
Held, (per Das C.J., Bhagwati, B. P. Sinha and S. K. Das JJ.,
Venkatarama
Ayyar J. dissenting)
that the contention of the
applicant was well-founded, that he had a vested right of appeal
to the Federal Court on and from the date of the suit and the
application for special leave should be allowed.
The vested right of appeal was a substantive right and,
although it could be exercised only in case of an adverse decision, it
was governed by the law prevailing at the time of commenttment
of the suit and comprised all successive rights of appeal from
court to court, which really constituted one
proceeding.
Such a
right could be taken away only by a subsequent enactment either
cxprCssly or by necessary intendment.
Colonial Sugar Refining Company Ltd. v. Irving, (1905) A.C.
369, followed.
Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 512 and ln re
Vasudeva Samiar, (1928) I.L.R. 52 Mad. 361, relied on.
Casc~law ·reviewed.
Article 133 of the Constitution had no application to such
cases.
It was not intended to have retrospective operation so as
co tak~ a.way this vested
right nor did it do so either in express
terms or by necessary intendment.
Correctly construed it should
be read as restricted to only those judgments, decrees and final
orders of a High Court in respect of which there was no such
S.C.R.
SUPREME COURT REPORTS
489
vested right of appeal, as otherwise cl. 20 of the Adaptation of
Laws Order, 1950, which saves such a right, would become nugatory.
A litigant in a Princely State who could have no vested
right of appeal to the Federal Court must, however, come under
Art. 133.
]anardan Reddy v. The Staie, (1950), S.C.R. 940, Keshavan
Madhava Menon v. The State of Bombay, (1951) S.C.R. 228 and
Dajisahib Mane v. Shankar Rao Vithal Rao, (1955) 2 S.C.R. 872,
referred to.
This vested right of appeal acquired under the old b w was a
matter contemplated by Art. 135 of the Constitution in relation
to which the jurisdiction and powers of the Federal Court were
exercisable at the commencement of the Constitution and as such
it was within the purview of the appellate
jurisdiction of the
Supreme Court, and the appeal was entertainable by it. Article
135 could not be limited to such
cas~ only where the right of
appeal had actually arisen in a concrete form, and was no mere
potentiality, immediately before the Constitution.
Ramaswami Chettiar v. The Official Receiver, A.LR. 1951 Mad.
1051,
Veeranna v.
Chi11a
Venkanna,
I.L.R.
1953 Mad. 1079,
Probirendra Mohan v. Berhampore Bank Ltd. A.LR. 1954 Cal. 289,
Ram Sahai v. Ram Sewak, A.LR.
1956 All. 321, Tafammul
Hussain v. Mst. Qaisar /agan Begam, A.LR. 1956 All. 638 and
The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar
Chand, A.LR. 1956 Punj. 228, overruled.
Canada Cement Co. Ltd. v. East Montreal (Town of), (1922) l
A.C. 249 and Nathoo Lal ''- Durga Prasad, (1955) 1 S.C.R. 51,
distinguished.
Pe

## Text

_Characters 0–39,541 of 196,444. This is a partial read: ask again with offset=39541 for what follows._

1957
February, I.
488
SUPREME COURT REPORTS
GARIKAPA TTI VEERAYA
v.
N. SUBBIAH CHOUDHURY
[1957]
[S. R. DAS
C. J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs J J.J
Supreme Court, Appellate furisdiction of-Dea·ee in suit insti·
tuted prio1· to the Constitution reversed in appeal by High Court ofter
the Constitution-Value of subject-matter short of twenty-thousandAppeal, if lies-Vested 1·ight of appeal-Constitution of India, Arts.
133, 135.
This application for $pecial leave to appeal arose out of .a
suit instituted on April 22, 1949, and valued at Rs. 11,400. The
Trial Court dismissed the suit and the High Court in appeal
reversed that decision on February
IO, 1955.
Application for
leave to appeal to the Supreme Court was refused by the High
Court on the ground that the value did not come upto Rs. 20,000.
It was contended on behalf of the applicant that he had a vested
right of appeal to the Federal Court under the law as it then
stood and that Court having been substituted by the Supreme
Court, he was as of right entitled to appeal to that Court under
Art. 135 of the Constitution.
Held, (per Das C.J., Bhagwati, B. P. Sinha and S. K. Das JJ.,
Venkatarama
Ayyar J. dissenting)
that the contention of the
applicant was well-founded, that he had a vested right of appeal
to the Federal Court on and from the date of the suit and the
application for special leave should be allowed.
The vested right of appeal was a substantive right and,
although it could be exercised only in case of an adverse decision, it
was governed by the law prevailing at the time of commenttment
of the suit and comprised all successive rights of appeal from
court to court, which really constituted one
proceeding.
Such a
right could be taken away only by a subsequent enactment either
cxprCssly or by necessary intendment.
Colonial Sugar Refining Company Ltd. v. Irving, (1905) A.C.
369, followed.
Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 512 and ln re
Vasudeva Samiar, (1928) I.L.R. 52 Mad. 361, relied on.
Casc~law ·reviewed.
Article 133 of the Constitution had no application to such
cases.
It was not intended to have retrospective operation so as
co tak~ a.way this vested
right nor did it do so either in express
terms or by necessary intendment.
Correctly construed it should
be read as restricted to only those judgments, decrees and final
orders of a High Court in respect of which there was no such
S.C.R.
SUPREME COURT REPORTS
489
vested right of appeal, as otherwise cl. 20 of the Adaptation of
Laws Order, 1950, which saves such a right, would become nugatory.
A litigant in a Princely State who could have no vested
right of appeal to the Federal Court must, however, come under
Art. 133.
]anardan Reddy v. The Staie, (1950), S.C.R. 940, Keshavan
Madhava Menon v. The State of Bombay, (1951) S.C.R. 228 and
Dajisahib Mane v. Shankar Rao Vithal Rao, (1955) 2 S.C.R. 872,
referred to.
This vested right of appeal acquired under the old b w was a
matter contemplated by Art. 135 of the Constitution in relation
to which the jurisdiction and powers of the Federal Court were
exercisable at the commencement of the Constitution and as such
it was within the purview of the appellate
jurisdiction of the
Supreme Court, and the appeal was entertainable by it. Article
135 could not be limited to such
cas~ only where the right of
appeal had actually arisen in a concrete form, and was no mere
potentiality, immediately before the Constitution.
Ramaswami Chettiar v. The Official Receiver, A.LR. 1951 Mad.
1051,
Veeranna v.
Chi11a
Venkanna,
I.L.R.
1953 Mad. 1079,
Probirendra Mohan v. Berhampore Bank Ltd. A.LR. 1954 Cal. 289,
Ram Sahai v. Ram Sewak, A.LR.
1956 All. 321, Tafammul
Hussain v. Mst. Qaisar /agan Begam, A.LR. 1956 All. 638 and
The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar
Chand, A.LR. 1956 Punj. 228, overruled.
Canada Cement Co. Ltd. v. East Montreal (Town of), (1922) l
A.C. 249 and Nathoo Lal ''- Durga Prasad, (1955) 1 S.C.R. 51,
distinguished.
Per Venkatarama Ayyar /. A right of appeal was undoubtedly
a substantive right but it did not, therefore, follow that it vested
in the parties to a suit on and from the date of its commencement
and the decision in Colonial Sugar Refining Company Ltd. v. Irving
on which such a theory was sought to be founded was neither
supportable in principle nor warranted by the authorities it relied
on.
Right to appeal to a superior court could arise only on the
passing of an adverse decision and the rights of successive appeal~
provided by the law did not constitute either a single proceeding
or a single right as will be apparent from the relevant provisions
of the Code of Civil Procedure.
Colonial Sugar Refinfog Company Ltd. v. Irving, (1905) A.C.
369, not followed.
Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 512 and In re
Vasudeva Samiar, (1928) LL.R. 52 Mad. 361, dissented from.
Case-law disQissed.
Assuming that the .petitioner had such a vested right of
appeal to the Federal
Court before the commencement of the
1957
Garikapatti V eerqya
v.
N. Sabbiah
Chowfhury
1957
;arikapatti Veeraya
v •
.;V. Subbiah
Choudhury
490
SUPREME COURT REPORTS
l1957]
Constitution, that right n1ust be held to have ceased with the
repeal of the Government of India Act, 1935, and consequent
abolition of the Federal Court, by the Constitution.
Veeranna v. Chinna Venkanna, LL.R. 1953 Mad. 1079 and
Daji Sahib Mane v. Shankar Rao Vithal Rao Mane, ( 1955) 2 S.C.R.
872, relied on.
There was, therefore, nothing on \vhich cl. 20 of the Adaptation of Laws Order, 1950, could operate so as to keep it ali\•e.
Nor could this Court be considered to be a successor of the Federal
Court so as to attract the opera ti on of that clause.
State of Seraikella v. Union of India, (1951) S.C.R. 474, relied on.
Article 133 applied to all judgn1ents, decrees and final orders
of I--Iigh Courts in Civil Proceedings passed after the comn1cncement of the Constitution irrespective of the dates of their institution and if an appeal did nqt satisfy its reqt:iremcnt as to valuation
it must be held to be incompetent.
Any vested right of
appeal
that might have existed prior to the Constitution must be held to
have been taken away by it by necessary implication.
Canada Cement Co. v. East Montreal, (1922)
1 A.C.
249,
DurousJeau v. United States, 3 L. Ed. 232: 6 Cranch 307 and
Baltimore and Potomac Railroad Company v. J. H. Grant, 98 U.S.
231 : 25 L. Ed. 231, referred to.
Article 135 of the Constitution could have rio application to
such a case as Art. 133 applied and there was no vested right to
appeal to the Federal Court in relation to which jurisdiction was
exercisable by that Court immediately
before the commencement
of
the Constitution.
The
application for
special leave
must,
therefore, be refused.
CIVIL
APPELLATE
JuRJSDICTJON :
Petition
Special Leave to appeal No. 170 of 1955 and
Miscellaneous Petition No. 579 of 1956.
for
Civil
Petition under Article 136 of the Constitution for
special leave to appeal from the judgment and decree
dated March 4, 1955, of the Andhra High Court in
A.S. No. 301 of 1951.
M. S. K. Sastri, for the petitioner.
T. V. R. Tatachary, for the respondents Nos. 1 and 2.
M. C. Setalvad, Attorney-General for India, for
assisting the Court.
1957.
February 1.
The judgment of Das C.J.,
Bhagwati, B. P. Sinha and S. K. Das JJ. was delivered
by Das C.J.
Venkatarama Ayyar J. delivered
a separate judgment.
S.C.R.
SUPREME COURT REPORTS
491
DAs C.J.-This is an application for special leave to
appeal from the judgment passed on February 10, 1955,
by the High Court of Andhra. The suit out of which
this application arises was instituted on April 22, 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 November 14, 1950,
dismissing
the
suit.
The
plaintiff
appealed.
On
October 1, 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 provisions of s. 38 of the
same Act. On March 4, 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.
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 Letters Patent of each particular High Court.
It will suffice for our present purpose to re(er to cl. 39
of the Letters 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
1957
Garikapatti Veeraya
v.
N. Subbiah
Choudhury
1957
Garikapatti Veeraya
v.
}{. Suhbiah
ClwudJ,ury
Das C.J.
492
SUPREME COURT REPORTS
[19571
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 for India. Section 204 of that
Act gave original jurisdiction to the Federal Court with
respect
to
certain
matters.
Section
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 those
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. Section 3 of
that Act provided that as from the appointed day, i.e.,
from February 1, 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 anv such
judgment. "Judgment to
which
this Act
~pplied"
was . defined by s. 2(b) as meaning any judgment,
decree or final order of a High Court in a civil case
S.C.R.
SUPREME COURT REPORTS
493
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
pro:eedings and steps taken in, and orders made and
certificates granted by, a High Court in connection
with an appeal to His Majestry 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 judgmerlt 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
ju<lgment 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 October 10, 1949, which
was referred to as the 'appointed day'. Secti9n 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. Sec"'.
tion 5 conferred
corresponding
jurisdiction
on
the
Federal Court, that is to say, as from the 'appointed
day' the Federal Court was authorised, iu 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
2-78 S. C. India/59
1957
Garikapatti V eeraya
v.
N. Subbiah
Choudhury
DasC. J.
1957
Garikapatti, Vttraya
v.
N. Subbiah
Chaudhury
Das C.J.
494
SUPREME COURT REPORTS
[1957]
Indian appeal pending before His Majesty in Council
immediately before the 'appointed day' were bys. 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.
It will be recalled that the suit out of which the
present petition arises was filed 011 April 22, 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.
The leading case
on the subject relied on by the
petitioner is Colonial Sugar Refining Company
Ltrl.
v.
Irving( 1 ). In that case the Collector of
Customs
acting under an Act called the Excise Tariff Act, 1902
required the appellants to pay
£ 20,100 excise duty on
6,700
tons
of
sugar.
The appellants disputed
the
claim. So they deposited the money with the Collector and then brought an action in the Supreme Court
of Queensland against the Collector for recovering the
sum so deposited. The writ in the action was issued
on October 25, 1902. At the date of the institution of
the action the Order in Council of June 30, 1860, gave
a right of appeal to His Majesty in Council from the
judgment of the Supreme Court. A special case having
been stated for the opinion of the Full Court, that
Court on
September 4, 1903, gave judgment for
the
Collector.
In the meantime the Judiciary
Act, 1903
had been passed and it received the royal assent on
August 25, 1903, that is to say about IO <lays before
the judgment was delivered by the Supreme Court. By
s. 38 the jurisdiction of the High Court of Australia in
certain specified matters was made exclusive of the
jurisdiction of the several Courts of the States and by
s. 39 it was made exclusive in all other matters except
as therein , provided. Sub-section 2 of s. 39 provided that
the several Courts of the States would be invested with
Federal jurisdiction in
all matters above
mentioned
except
those
specified in s.
38, subj.ect to
certain
(r) [1905] A. C. 369.
S.C.R.
SUPREME COURT REPORTS
495
conditions and restrictions, one of which was
that
every decision of a Court of a State from which, at the
establishment of the Commonwealth, an appeal lay to
the Queen in Council, should be final and conclusive
except ser far as an appeal might be brought to the
High Court. The result of this
Act was
that Her
Majesty in Council ceased to be a Court of Appeal from
the decision of the Supreme Court and the only appeal
from
the Supreme Court under that Act lay to the
High Court of Australia. The Supreme Court of Queensland having granted leave to the appellants under the
Order in Council of 1860 the appellants filed the appe~l
in the Privy Council. The respondent filed a petition
before the Privy Council praying that the appeal might
be dismissed with costs on the ground that the right of
appeal to His Majesty in Council given by the Order in
Council of June 30, 1860, under which the leave had
been granted, had been taken away by the Judiciary
Act, 1903 and that the only appeal from a decision of
the Supreme Court of Queensland lay to the High Court
of Australia.
On behalf of the appellants it was contended that the provisions of the f udiciary Act, 1903,
on which the respondent relied, were not retrospective
so as
to defeat a right in existence at the time when
the Act received the royal
as~.ent. Their Lordships
of
the Privy Council dismissed
the
respondent's
petition
and observed as follows :
.
"As regards
the
general principles applicable
to
the case there was no controversy. On the one hand,
it was not disputed that if the matter in question be a
matter of procedure only, the petition is well founded.
On the other hand, if it be more than a matter of
procedure, if it touches a right in existence
at the
passing of the Act, it was conceded that, in accordance
with a l0!'1g line of authorities extending from
the
time of Lord Coke to the present day, the appellants
would be
entitled to succeed. The Judiciary Act is
not retrospective by express enactment or by necessary
intendment. And therefore the only question is, was
the appeal to His Majesty in Council a right vested in
the appellants at the date of the passing of the Act, or
was it a mere matter of procedure? It seems to their
1957
Garikapatti V eeraya
v.
]{. Subbiah
Choudhur;•
DasC.J.
1957
Garikapatti Veeraya
v.
N. Subbiah
Choudhury
Das C.J.
496
SUPREME COURT REPORTS
[1957}
•
Lordships that the question does not admit of doubt.
To deprive a suitor in a pending action 0£ an appeal to
a superior tribunal which belonged to him as of right
is a very different thing from regulating procedure. In
principle, their Lordships
see
no difference between
abolishing an appeal altogether and tra.nsferring
the
appeal to a new tribunal. In either case there is an
interference with existing rights contrary to the wellknown general principle that statutes are not to be
held to act retrospectively unless a clear intention to
that effect is manifested."
This proposition of law has been firmly established
in English jurisprudence and this decision is accepted
as sound and cited with approval in leading text books.
As will be presently seen, it has been followed an<l.
applied in- numerous decisions in England and India
and its correctness or authority has not been questioned by any of the learned counsel appearing before us.
on the present occasion.
The principle of the above decision was applied in
India by Jenkins C.j. in Nana bin Aba v. Sheku bin
Andu (1) and by the Privy Council itself in Delhi Cloth
and General Mills Co. Ltd. v. Income Tax Commissioner,
Delhi('). In Delhi Cloth and General Mills Co. Ltd. v.
Income Tax Commissioner, Delhi (supra) two assessment
orders were made, one on June 12, 1923, and the other
on March 23, 1924. In each case the sum in dispute
exceeded Rs.
10,000. At the request of the assessee
two cases were stated by the Commissioner to the High
Court under s. 66 of the Indian Income Tax Act. The
High Court affirmed the decisions of the Commissioner
in January, 1926. The petitioner applied for leave to·
appeal to the Privy Council. On April 1, 1926, came
the Indian Income Tax Amendment Act, 1926 which
added s. 66A to the Indian Inco~e Tax Act which gave
a right of appeal. The learned Judges of the High
Court were of opinion that the petitioners had a right
of appeal to His Majesty in Council provided they could
in effect bring their cases within the requirements of
s. 109(c) of the Code of Civil Procedure but not otherwise. The High Court dealt with the applications for
(1) [1908] I.L.R. 32 .Bombay 337.
-
(2) [1927] L.R. 541.A. 4z.; LL.R. 9Lah. 284 .
•
' ~'
•
:S.C.R.
SUPREME 'COURT REPORTS
497
·certificates on that footing but dismissed them
and as
it refused to certify that the case was a fit one for
.appeal to His Majesty in Council, the company applied
to the Privy Council for special leave to appeal from
the two orders of th.! High Court passed in January,
1926.
It will be noticed that in January, 1926 when
:the orders were made by the High Court under s. 66,
s. 66A was not in the Act at all and it had been held
by the Privy Council in Tata Iron and Steel Company
Ltd. v. Chief Revenue Authority(' ), that there was no
right of appeal from a judgment delivered-by the High
Court under s. 66 of the Indian Income Tax Act.
Therefore the orders of the High Court were final when
they were made in January 1926.
Such was the position until April 1, 1926, when s. 66A was added to the
Act. The question was whether this section destroyed
the finality that had attached to the orders when they
were made and gave any right of appeal at all from
the orders of the High Court made before the Act of
1926 came into force. Their Lordships answered the
question as follows :
"The principle which their Lordships must apply in
dealing
with
this
matter has been
authoritatively
enunciated by the Board in
Colonial Sugar Refin1!1g "Co. v. Irving('), where it is in effect laid down that,
while
provisions
of a statute dealing merely
with
matters
of
procedure
may
properly,
unless
that
rnnstruction be textually inadmissible, have retrospective effect attributed to . them, provisions which touch
a right in existence at the passing of the statute are
not to be applied restrospectively in the absence of
express
enactment or
necessary
intendment.
Their
Lordships can have no doubt that provisions which if
applied retrospectively, would deprive of their existing
finality orders which, when the statute
came
into
force, were final, are provisions which touch existing
rights. Accordingly, if the section now in question is
to apply to orders final at the date when it came into
force, it must be clearly so provided. Their Lordships
cannot find in the section even an indication to that
effect. On the contrary, they think there is a clear
(1) [1923] L.R. 50 LA. 212.
(2) [1905] A.C. 369.
1957
Garikapatti Ve_era)'a
v.
N. Subbiah
Choudhury
DasC.J.
1957
Garikapatti Vttraya
v.
N. Subbiah
l1wudhury
Das C. J.
498
SUPREME COURT REPORTS
[1957}
suggestion that a judgment of the High Court referred
to in sub-s. 2 is one which under sub-s. 1 has been
pronounced by "not less than two judges of the High
Court'', a condition which was
not itself
operative·
until the entire section came into force.
In their Lordships' judgment, therefore, the petitioners in these cases have no statutory right of appeal
to His Majesty in Council. Only by an exercise of
the Prerogative is either appeal admissible."
The question of finality of order was considered by
this Court in the case of Indira Sohanlal v. Custodian
of Evacuee Property, Delhi and others (1 ). In that case
the facts shortly stated were as follows : On October
10, 1947, the appellant had arranged with a Pakistani
for the exchange of certain properties she left behind
at Lahore at the time she migrated to India after the
partition for certain lands in a village in the State of
Delhi belonging to that Pakistani.
On February 23,
1948, the appellant applied to the Additional Custodian
for confirmation of the transaction under s. 5-A of the
East Punjab Evacuees'
(Administration of Property)
Act, 1947 as amended in 1948.
Section 5-B of that
Act provided that if the original order under s. 5-A
was passed by an Additional or Deputy Custodian of
Evacuee
Property,
any
person
aggrieved
by
such
orckr might appeal within 60 days from the date of
the order to th.e Custodian of Evacuee Property; and
subject only to the decision on such appeal, if any,
the order passed by the Assistant or Deputy Custodian
would be final and conclusive.
For some
reason
or
other the appellant's application for confirmation was
not taken up promptly, but was adjourned from time
to time. In the meantime the East Punjab Evacuees'
( Administra6on of Property) Act, 1947 was repealed
by ordinances, which in
their turn were eventually
replaced by the Administration of
Evacuee
Property
Act, 1950 (Central Act XXXJ of 1950). Section 27(1)
of the Act empowered the Custodian General, either
on his own motion or on application made to him in
this behalf, to call for the record of any proceeding in
which any district judge or '.:ustodian had passed
an
(1) [1955] 2 S.C.R, 1117.
S.C.R.
SUPREME COURT REPORTS
,
499
order for the purpose of satisfying himself as
to the
legality or propriety of any such order and to pass
order in relation thereto as he thought fit.
In other
words s. 27 ( 1) of the new Act gave a power of revision to the Custodian General. On March 20, 1952,
the Additional Custodian acceded to the appellant's
application and confirmed the exchange.
On May 5,
1952, the appellant applied to be put in possession.
Thereupon a notice was issued under s. 27(1) of the
Central Act XXXI of 1950 to the appellant to show
cause why the order of the Additional Custodian dated
March 20, 1952, should not be set aside.
On May 20,
1953, the Custodian General passed an order setting
aside the order of confirmation passed by
the
Additional Custodian on the ground, inter alia, that notice
had
not been served
on all
parties interested
and
directed the Custodian to decide the case on notice to
aU parties interested. The petitioner obtained special
leave to appeal to this Court against the order of the
Custodian
General
of
Evacuee
Property.
At
the
hearing of the appeal
the learned counsel for the
:i.ppellant contended
that according to
the
principle
laid down by the Privy Council in
Colonial Sugar
Refining Co. Ltd. v. Irving (supra), she had, on the
filing of her
application
for
confirm:i.tion
in 1948,
acquired a vested right to have to determined under
s. 5-A with the attribute of finality and conclusiveness
attaching to the odrer when made just asa litigant
acquired a vested right of :i.ppeal on the commencement of his suit or proceeding and that vested right
could not be t:i.ken away by subsequent statute except
lw
express
provision
or
by
necessary
intendment.
There was, :i.ccording
to the
appellant,
nothing in
s. 27 of the Administration of Evacuee Property Act,
1950 (Central Act XXXI of 1950), which expressly or
by
necessary
intendment
took
away
th:i.t
vested
right.
It will be
noticed
that at
the date
of the
commencenknt of the Central Act XXXI of 1950 no
order had actually been made to which
the attribute
of finalitv could
attach.
In these circumstances this
Court repelled the contention of the appellant with the
following words :
1957
Garikapatti VeeraJ•a
v.
N. Subbiah
Choudhury
Das C.j.
1957
Garikapatti Fttraya
,._
}/. Subbiah
Choudhur_J
Das C.J.
500
SUPREME COURT REPORTS ,
[1957]
"However this
may
be,
it
appears to be
clear
that while a right of appeal m respect of a pending
action may conceivably be treated
as a
substantive
right vesting in the litigant on the commencemrnt of
the action-though we
tlo
not
so
decide-no such
vested
right
to
obtain a determination
with the
attribnte of finality can be predicated in favour of a
litigant on the institution of the ;iction.
By the verv
terms of section
5-B of fast l'un;ab Act
XIV of
1947, finality attaches to it on
the
making of the
order. fa·en if there be, in law, any such right at all
as the right to a determination with the attribute of
finalitv. it can in no sense be a vested or accrued
right. .. It does not accrue until the determination
is
in fact made, when alone the right to finality becomes
an existing right as in Delhi Cloth and General Mills
Co. Ltd. v.
Income Tax Commissioner( 1 ). We are,
therefore, of the opinion that the principle of Colonial
Sugar Refining Co. Ltd. v. Irving (supra) cannot be
invoked in support of a case of the kind we are dealing
\\'ith."
It is clear from the above passage that this Court,
on tl1at occasion, left open
the
question whether a
right of appeal in respect of a pending action could
be treated as a substantiw right vesting in the litigant
on the commencement
of
the
action.
It
becomes,
necessary,
therefore,
to
go
into
that question
m
detail.
In Ramakrishna Iyer v. Sithai Ammal(' ), a magistrate on August 4, 1923, granted sanction under s. 195
of the Code of Criminal Procedure to prosecute the
the respondent for having preferred a false charge of
daco;ty against the appellant. Sub-section 6 of s. 195,
as it stood at that date, provided that the sanction
might be revoked or granted by
any
authority
to
which the authority giving or refusing it was subject.
Pursuant to the sanction the complainant filed a petition of complaint. On August 22, 1923, the respondent
applied for
revocation of the sanction but no order
was made. On September 1, 1923, s. 195 of the Code
(1) [1927] l.L.R. 9 Lahore 284.
(i) [1925] I.L.R. 48 Mad. 620 (F.B.).
5.C.R.
SUPREME COURT REPORTS
501
-of Crir.1inal
Procedure
was amended.
The relevant
portiol1 of the amended section was in these terms :
.
"I95.
(1) No court shall take cognisance-
(a) ............. .
(b) of any offence punishable under any of . the
following sections of the same Code, namely, sections
193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
210, 211 and 228,
when such offence is alleged to have
been committed in, or in relation to, any proceeding
in any court, except on the complaint in writing of
such court or of some other court to which such court
:s subordinate; or
"
After the amendment came into force the respondent received
notice
of
the
prosecution
already
in:;;tituted against her. In 1924 she filed another petition for revocation of the sanction.
The magistrate
revoked
the
sanction.
The complainant
petitioner
ti led this petition against this order 0£ revocation of
sanction. In dismissing this application a Full Bench
nf five Judges of the Madras High Court presided over
by Coutts Trotter C. J. referred to the decision of the
Privy Council in Colonial Sugar Refining Co. Ltd. v.
lr1ii11g
(supra)
and quoted the
passage
in
Lord
Macnaghtcn's judgment as laying down the p:inciple
in clear language. At page 629 Coutts Trotter C. J.,
who delivered the judgment of the Full Bench, stated
as follows :-
"The question
we
have
to
decide
1s
whether
this was a right of entering the Superior Court and
invoking its
aid
and
interposition
to
redress
the
erro: of the Magistrate's Court below and therefore
it seems to
us
that, on principle
and those
very
weighty authorities, we
ought to hold
that this
is
not a case of procedure but it is a case of a real right
to invoke the aid of a higher tribunal. \Ve are also of
opinion that those principles arc really
involved and
carried out by section 6 of the General Clauses Act X
of 1887."
It will be noticed that even the peremptory language
:>f the amended s. 195 quoted above was not regarded
1957
Garikapatti Veeraya
v.
N. Subbiah
Choudhury
DasG.J.
1957
Garikapatti Veera;•a
v.
N. Subbiah
Choudhury
Das C.J.
502
SUPREME COURT REPORTS
[1957]
as containing anything which expressly or by necessary intendment took away the right which had vested
in the respondent under old s. 195 ( 6) when the sanction
had been granted against her on August 4, 1953,
to
have it revoked.
In Daivanayaka Reddiyar and two others v. Renukambal Ammal ('), a suit was filed on March 21, 1921, by a
widow
for
maintenance.
It was
valued
at rupees
14,600 according to the provisions of the Court Fees
Act (VII of 1870) then in force. Under s. 13 of that
Court Fees Act appeals lay to the district court or the
High Court according as the value of the subject matter
of the suit was below or over rupees 5,000. On April
18, 1922, the Madras Court Fees Amendment Act (V of
1912) came into force. Section 7(2) of the old Court
Fees Act (VII of 1870) was amended. The trial court
decreed the suit on March 13, 1923. On April 19, 1923
the defentbnts filed an appeal in the High Court. In
the appeal the court fee was paid on Rs. 2,633-5-4
calculated according to the valuation in terms of the
amended Act.
An objection was taken on behalf of
the plaintiff-respondent that the appeal did not iie to
the High Court but should have been filed in the district court. The contention was that though the. suit
was Yalued at more than Rs. 5,000 under the law in
force at the time of filing of the plaint, yet the valuation of the suit according to the amended Court Fees
Act at the time the appeal was presented would have
been less than Rs. 3,000 ,md, therefore, the appeal to
the
High
Court was
incompetent.
The following
question was referred to the Full Bench :
"Does the appeal against the decree in a suit
m
which the valuation M the relief claimed according to
the law in force at the date of the plaint was more
than Rs. 5,000 but at tbe time of the appeal is less than
Rs. 5,000 owing to the amendment of the Court Fees
Act, lie to the High Court or to the District Court?"
The Full Bench consisting of three Judges held that
the appeal had properly been brought before the High
Court. The Full Bench observed :
(t) [1927] I.L.R. 50 Mad. 857.
S.C.R.
SUPREME COURT REPORTS
503
"It is argued that this section does not confer any
right of appeal to the High Court in definite classes of
suits, but that the right of appeal is merely given to
the Court authorised to hear appeals and the question
of whether the Court is the District Court or the High
Court depends on the valuation of the suit at the time
of filing the appeal. It is difficult to treat this argument as any way distinguishing the case from
that
of Colonial Sugar Refining Companv v. Irving( 1 ), for, in
both cases there was, when the suit was filed, a vested
right of appeal to a particular tribunal, which is taken
away
by a subsequent enactment.
According to
the
argument, when the right is taken away by a subsequent alteration in a mere fiscal enactment, the case is
not the same as \vhen the right depends on substantive
law. This is untenable. It has been held by the Privy
Council that this cannot be done and we are bound bv
that general expression of the law and must follow it.;,
Bala Prasad and others v. Shyam Behari Lal and
other:( ") which was a decision by a single judge who
followed the Privy Council decision does not require
any further consideration and we may pass on to Ram
Singha v. Shankar Daval( 3 ) which is very important. In
the last mentioned case a suit for rent was filed on
July
12,
1926.
At
that
time
the
North-Western
Provinces Tenancy Act, 1901 (U.P. Act II of 1901) was
in force. Section 177 of that Act gave a right of appeal
from the decision of the Assistant Collector to the District Judge when the amount or value of the subject
matter of suit exceeded Rs. 100.
On September
7,
1926, Agra Tenancy Act (U.P. Act III of 1926) came
into force.
It repealed the old Act of 1901.
Section
240 of the new Act reproduced s. 175 of the old Act
providing that no appeal would lie from any decree or
order passed by any court under this Act except as
provided in this Act. The material portion of s. 242,
which corresponded to s. 177 of the old Act provided
as follows :-
"242 ( l). An appeal shall lie to the district judge
from the decree of an assistant collector of the first
(1) [1905] A.C. 369.
(3) [1928) I.L.R. 50 All. g65 (F.B.)
(2) [1928] 26 A.L.J. 4o6.
1957
Garikapatti Veeraya:
v.
N. Subbiah
Choudhury
DasC.J.
1957
t-Garikapatti Vtera1a
v •
.. v. Subbiah
Choudhury
DasC.J.
504
SUPREME COURT REPORTS
[1957]
class or of a collector in any of the suits included in
group A of the Fourth Sclmlule in which-
( a) the amount or value
of the subject-matter
exceeds rupees two hundred; or
(b)
,,
On December 23, 1926, i.e., after the new Act came
into force, the suit was decreed by the assistant collec- -
tor. The defendant presented en appeal to the district
judge. The district judge
returned the me1noranJu1n
of appeal. The defendant presented the memorandum
before the Collector of Etawah and that officer was of
opinion that he had no jurisdiction to entertain
the
appeal and referred the case to the High Court under
s. 207 of the Agra Tenancy Act. The reference came
up before a Bench of the Allahabad High Court which
referred the following question to a Full Bench :
"\Vhether the filing of an appeal is governed by
the law obtaining at tbe date of the institution of a
suit or by the bw that may prevail at the date of the
decision o.f it, .or at the date of the filing of the
appeal?"
It will be noticed that the question definitely called
for a decision as to when the right of appeal vested in
the litigant. A Full Bench of three Judges
presided
over by Mr. Justice Sulaiman, then Acting Chief T ustice
of Allahabad, expressed the following opinion :
"In our opinion the point is
concluded
by
the
pronouncement of their Lordships of the Privy Council
in .the case of Colonial Sugar Refining Company Ltd. v.
Irving( 1 ). In that case, ordinarily an appeal lay to their
Lordships of the Privy Council from an order of the
Supreme Court. While the matter was pending in that
court, the law was amended so as to allow an appeal
to the High Court. Their Lordships of the Privy
Council held that the new Act could not deprive
the
party of his right to appeal to the Privy Council. Lord
Macnaghten remarked
at page 372 : 'To deprive a
suitor in a pending action of an appeal to a superior
tribunal which belonged to him as of right is a very
different thing fwm regulating procedure'."
(r) [1905] A.C. 369.
S.C.R.
SUPREME COURT REPORTS
505
"That principle was reaffirmed by their Lordships in
the case of Delhi Cloth and General Mills Co. Ltd. v.
Income Tax Commissioner( 1 ). The principle has been
followed by a Full Bench of the Madras High Court
in the case of Daivanayaga Reddiar v.
Renukambal
Ammal( ). Dalal J. has taken the same view in the
case of Bala Prasad v. Shyam Behari Lal(
3 )."
The Full Bench answered the question as follows :
"Our answer to the reference is that the right to
appeal to the court of the District Judge was governed
by the law prevailing at the date of the institution of
the suit, and not by the law that prevailed at the date
of its decision, or at the date of the filing of the
appeal."
It will be noticed t11at the language of s.