# SUPREME COURT REPOR'l'S (1953] GANPAT RAI ll[RAI1AL AND ANOTHER v. AGGARWAL CHAMBER OF COMMERCE LTD. MURARI LAL HARI RAM

- **Citation:** [1953] 1 S.C.R. 752
- **Court:** Supreme Court of India
- **Decided:** 1950-05-01
- **Case number:** Civil Appeals Nos. 152, 167 and 167-A of 1951
- **Bench:** Mehr Chand Mahajan, 0Handrasekhaba Aiyab, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-repor-l-s-1953-ganpat-rai-ll-rai1al-and-another-v-aggarwal-195
- **Pages:** 7

## Headnote

PepS1! Ordinance (X of 2006), ss.52, 116-Patiala States Judicature Farman, 1999-Appeal frmn order of single J1ul.ge-Certificate of fitness-When necessary-Order made before Ordinance came
into f01·ce-Petition for amendment th.,·eafter-Appeal from order
dismissing petition-Necessity of certificate-Right of appeal--
Vested 1·ight--Effect of change of law.
Section 116 of the Pepsu Ordinance X of 2005 (1948-1949) is
a transitory regulation providing for Ri change over of proceedings
from one set of courts in the covenanting State to others of like
status in the Union, and for their continuance etc. in the latter
courts. It does not mean that the proceedings must be treated as
having freshly commenced.
What is contemplated in the latter
part of the section is a notional commencem0nt, and the section
means that all rights which arose or are likely to arise in future
shall remain intact notwithstanding the new set up and that they
would be dealt with by the Union courts in place of the courts of
the covenanting State. There is nothing in the section to justify
the view that any taking away of a vested right of appeal retros-,
pectively was intended.
Under the Patiala States Judicature Farman of 1999 a certificate was necessary for an appea.l to a Division Bench from an
order of a single Judge of the Patiala High Court only in. respect
of judgments and orders made in the exercise of civil appellate
jurisdiction. Under the Pepsu Ordinance X of 2005 (1948-49) a
certificate was necessary in all cases. In Appeal No. 152 an
application made on 2nd February, 1950, for amendment of an
order made by a Liquidation Judge in 1946 was dismissed and an
appeal from the order of dismissal to a Division Bench was dis·
missed on 1st May, 1950, for want of a certificate. In appeals
Nos. 167 and 167A, the paymenl; orders were made on the 18th
January, 1949, and appeals from those orders were dismissed on
3rd March, 1949, for want of a certificate:
Held, (i) that as a petition for amendment was not a continu·
ation of the" earlier proceedings but was in the nature of an
'
S.C.R.
SUPREME COURT REPORTS
753
independent proooeding though connected with the order sought to
be amended, it was governed by the law prevailing on its date,
1952
viz., the Pepsu Ordinance of 2005 under which a certificate was
Ganpat Rai
necessary, and in Appeal No. 152 the dismissal of the appeal to the
Hira L 1 l
Division Bench ior want of a certificate was right;
and Another
(ii) that with regard to Appeals Nos. 167 and 167.A, as the
v.
l
law in force on the relevant dates was the Patiala States .JudiAgga;w•
cature Farman of 1999 the appellants had a right to appeal from
Oharn ";!.
the payment order without a certificate; this vested right could Oommsrce t '
not be taken away by a subsequent change in the law unless the
later enactment expressly or by necessary implication was retrospective in operation and· deprived them of such a right, that there
was nothing in s.116 ol the Ordinance to show that it was intended to have retrospective effect and the order of the High
Court dismissing the appeals as incompetent was, therefore,
erroneous.
Colonial Sugar Refining Company v. Irving [1905] A.O. 369
referred to.

## Text

1952
October 24
752
SUPREME COURT REPOR'l'S
(1953]
GANPAT RAI ll[RAI1AL AND ANOTHER
v.
AGGARWAL CHAMBER OF COMMERCE LTD.
MURARI LAL HARI RAM
v.
MARWARI CHAMBEH OF COMMERCE LTD.
[MEHR CHAND MAHAJAN, 0HANDRASEKHABA AIYAB
and BHAGWATI JJ.]
PepS1! Ordinance (X of 2006), ss.52, 116-Patiala States Judicature Farman, 1999-Appeal frmn order of single J1ul.ge-Certificate of fitness-When necessary-Order made before Ordinance came
into f01·ce-Petition for amendment th.,·eafter-Appeal from order
dismissing petition-Necessity of certificate-Right of appeal--
Vested 1·ight--Effect of change of law.
Section 116 of the Pepsu Ordinance X of 2005 (1948-1949) is
a transitory regulation providing for Ri change over of proceedings
from one set of courts in the covenanting State to others of like
status in the Union, and for their continuance etc. in the latter
courts. It does not mean that the proceedings must be treated as
having freshly commenced.
What is contemplated in the latter
part of the section is a notional commencem0nt, and the section
means that all rights which arose or are likely to arise in future
shall remain intact notwithstanding the new set up and that they
would be dealt with by the Union courts in place of the courts of
the covenanting State. There is nothing in the section to justify
the view that any taking away of a vested right of appeal retros-,
pectively was intended.
Under the Patiala States Judicature Farman of 1999 a certificate was necessary for an appea.l to a Division Bench from an
order of a single Judge of the Patiala High Court only in. respect
of judgments and orders made in the exercise of civil appellate
jurisdiction. Under the Pepsu Ordinance X of 2005 (1948-49) a
certificate was necessary in all cases. In Appeal No. 152 an
application made on 2nd February, 1950, for amendment of an
order made by a Liquidation Judge in 1946 was dismissed and an
appeal from the order of dismissal to a Division Bench was dis·
missed on 1st May, 1950, for want of a certificate. In appeals
Nos. 167 and 167A, the paymenl; orders were made on the 18th
January, 1949, and appeals from those orders were dismissed on
3rd March, 1949, for want of a certificate:
Held, (i) that as a petition for amendment was not a continu·
ation of the" earlier proceedings but was in the nature of an
'
S.C.R.
SUPREME COURT REPORTS
753
independent proooeding though connected with the order sought to
be amended, it was governed by the law prevailing on its date,
1952
viz., the Pepsu Ordinance of 2005 under which a certificate was
Ganpat Rai
necessary, and in Appeal No. 152 the dismissal of the appeal to the
Hira L 1 l
Division Bench ior want of a certificate was right;
and Another
(ii) that with regard to Appeals Nos. 167 and 167.A, as the
v.
l
law in force on the relevant dates was the Patiala States .JudiAgga;w•
cature Farman of 1999 the appellants had a right to appeal from
Oharn ";!.
the payment order without a certificate; this vested right could Oommsrce t '
not be taken away by a subsequent change in the law unless the
later enactment expressly or by necessary implication was retrospective in operation and· deprived them of such a right, that there
was nothing in s.116 ol the Ordinance to show that it was intended to have retrospective effect and the order of the High
Court dismissing the appeals as incompetent was, therefore,
erroneous.
Colonial Sugar Refining Company v. Irving [1905] A.O. 369
referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 152, 167 and 167-A of 1951. Appeal from the
Judgments dated April 25, and May 1, 1950, of the
High Court of Judicature for P:ttiala and East Punjab Suates Union at Patiala (Teja Singh C. J. and
Chopra J.) in L. P.A. R. I. A. O. No. 34 of 1950 and
Civil Appeals Nos. 493/494 of Samwat 2005.
Rang Behari Lal (Ram Nivas Sanghi, with him)
for the appellants in Civil Appeals Nos. 167 and
167-A.
Udai Bhan Chaudhuri for the appellant in Civil
Appeal No. 152.
Lachhrnan Das Kaushal for the respondent in Civil
Appeals Nos. 167 and 167-A.
Ram Nivas Sanghi for the respondent in Civil
Appeal No. 152.
1952.
October 24. The Judgment of the Court
was delivered by
CHANDRASEKHARA AIYAR J.-These appeals are
connected and raise a common question of law. They
come before us on special leave granted by the Pepsu
High Court at Patiala under sub-clause (c) of clause
(1) of 11rticle 133 of the Constitution,
754
SUPREME COURT REPORTS
[1953]
1952
The fact5 in Civil Appeal No. 152. of 1951 are
different from those in the other two appeals, and
Gttnpat Bai
mra Lal
the consequences are different also.
and Another
The proceedings arise out of the liquidation of two
A v,
1
companies called the Marwari Chamber of Commerce
Oh~;,~;,~"01 Ltd., (in Civil Appeal No. 152 of 1951) and the
Commer;, Ltd. Aggarwal Chamber of Commerce Ltd., (in the other
two appeals).
The Official Liquidator settled the list
Ohandi·asekhai·a of contributories, and after various steps taken before
Aiyar J.
the Liquidation Judge of the High Court by way of
objection 0n grounds of law as well as on merits, there
were payment orders on 4th June, 1946, in Civil
Appeal No. 152 of 1951 and on 18th January, 1949,
in the latter two appeals.
·
The correctness and the validity of the payment
order in Civil App<lal No. 152 of 1951 was challenged
in appeals taken to the High Court by the Official
T~iquidator and the contributory. The order of the
Liquidation Judge was modified in favour of the
T~iquidator, and as against a sum of Rs. 4,762-13-3
ordered to be paid, there was au order for the payment of Rs. 24,005-7-3. · On further appeal by the
contributory to the Judicial Committee, it was he:d
that the appeal to the Division Bench was barred by
time, and consequently the judgment of the Bench
was set aside, and that of the Liquidation Judge
restored. This was on 6th December, 1949.
In the other two appeals, an application for removal of the name of the contributory was granted by
the Liquidation Judge, but on appeal a Divisiou
Bench of the High Court reversed this order.
On
further appeal taken by the company, the Judicial
Committee, Patiala, remanded the case for retrial, and
the Liquidation Ju,dge m~Lde au order for payment of
Rs. 8,191-0-9 on 18th January, 1949, as aforesaid.
On 2nd February, 1950, the firm M urari r~al-Hari
Ram, appellant in Civil Appeal No. 152of 1951, filed
an application under section 152, Civil Procedure
Code, for amendment of the order of the Liquidation
Judge, Kartar Singh J., alleging that there was a
8.0.R.
SUPREME COURT REPORTS
755
clerical or arithmetical error arising from an acciI9os
dental slip or omission in that a sum of Rs. 24,005-7 -3
was taken as due by the firm instead of the correct
Ganpat Rai
Hira ~al
figure of Rs. 21,805-7-3. This application was dis-
""d Another
missed by the learned Judge on 16th March, 1950. The
v.
firm applied to him for a certificate for leave to
Aggarwal
appeal, but this again was dismissed. An appeal was 0 0hamber of
f
d f
h
d
d.
· ·
h
d
ommerce Ltd.
pre erre
rom t e or er
1sm1ssmg t e amen ment
__
petition, but it was thrown out on the ground of want Ohandrasekhara
of a certificate from the Single Judge.
This order is
Aiyar J.
dated 1st May, ~950, and is couched in these terms:
"We have recently held in Ganpat Bai Hira Lal v.
Aggarwal Chamber of Comnurce, Ltd., L.P.A. Nos. 493
and 494 of Samvat 2005 (Pepsu) that no appeal lies
from an order of a Single Bencb to a Division Bench
without a certificate by the Single Judge that the case
is a fit one for further appeal. In this case it is admitted
that the appellants made an applic[ltion for a certificate to the Single Bsnch, from whose decision he is
appealing, but the same w:i.s refused.
The appeal is
therefore not
competent
and
is
dismissed in
limine."
The reference in the order to the case of Ganpat Rai
HiraLalv. Aggarwal Chamber ofCommerceLtd., L.P.A.
Nos. 493 and 494 of Sam vat 2005 (Pepsu) is to the
o;rder m:i.de by the High Court in the connected matter
which has given rise to the two Appeals Nos.167 and
167-Aof 1951. There, an appeal w:i,~ lodged from
the payment order of the Liquidation Judge, but it
was dismiss~d on the same ground, namely, want of a
certificate from the Single Judge.
In Civil Appeal No. 152 of 1951, the argument for
the appellant is that no certificate from the Single
Judge is necessary, as the matter is governed not by
Ordinance X of 2005 of the Patiala State but by the
Patiala :::tates Judicature Farman E Shahi, 1999,
Bikarmi, under which no certificate is necessary. It is
true that under section 44 of the earlier Farman a
certificate that the case is a fit one for appeal is
required only if the judgment, decree, or order sought
to be appealed is made in the
e~ercise of civil
~8
756
SUPREME COURT REPORTS
[1953)
appellate jurisdiction. It is, however, tllear that we
are not bo-overned h.)' this provision. The amendment
Ganpat Rai
Hira Lal
application was made on 2nd February, 1950, as
190~
on.d Anothei·
stated alre~dy.. No appeal is provided nuder the
v. .
Civil Procedure Code from an order amending or
Aggarwol
refusing to amend a judgment, decree or order, though
0 Chamber ~{d an appeal· would lie from the amended decree or
0
"'"''"'
• order.
'l'here is no warrant for tli.e view that the
Chandrasekharn amendment petition is a continuation of the suit or
Aiyar J.
proceedings therein. It is in the nature of :i.n independent proceeding, though connected with the order
of which amendment is Bought.
Sucli a proceeding
is governed by the law prevailing on its date, which
admittedly is Pepsu Ordinance X of 2005, and which
provides in section 52 for a certificate. 'fhe section
is in the following terms:
"Subject to any other provision of law, an appeal
shall lie to the High Court from a judgment, decree
or order of one Judge of the High Court and shall be
heard "by a Bench consisting of two Judges of the
High Court: Provided that no such appeal shall lie
to the High Court unless the Judge who decides the
case or in his absence the Chief Justice certifies that
the case is a fit one for appeal. ... "
So far as the appellant firm is concerned, there is
no question of any right of appeal vested in it
which is sought to be taken away by giving retrospective
eff~ct to the Ordinance which came
into force in August, 1g43, The order of the High
Court holding that no appeal lies from an order of a
single .Judge without a certificate by him that the
case is a fit one for appeal, is, in our opinion, right.
In the other two Appealo Nos. 167 ,ind 167A of
1951, different considerations come into play.
'rhe
payment order of the' Liquidation Judge was on 18th
.January, 1949, and the :1ppeal was preferred on 19th
February. 1949. In the meantime, as there was some
doubt on the question, the appellants took the precaution of applying to the Judge for a certificate, but
this was dismissed on 3rd March, 1949. On the relevant dates, the Patiala States Judicature Farman,
19991 was in force, and the appellants had a right of
S.C.R.
SUPREME COURT REPOR'rs
757
appeal from the payment order without a certificate.
1952
They could not be deprived of this right by a subseh
·
h
Ganpat Rai
quent c ange m t e law, unless the later enactment
Hira Lal
provides expressly or by necessary implication for
and Another
retrospective effect being given. Th~ learned Judges
v.
of the High Court conceded this in their order, but
Aggarwal
they thought that section 116 of Ordinance X of 0Chamber of
2005 (1948-49) c·ontained an express provision to the
0
"'""'"'' Ltd.
contrary. 'rhe section is in these terms:
Ohandrasokhara
" Notwithstanding anything contained in this
Aiyar J.
Ordinance, :di suits, appe:tls, revisions, applications,
reviews, executions and other proceedings, or any of
them, whether civil or criminal, pending in the Courts
a.nd before judicial authorities in any Covenanting
St:tte shall be continued and concluded respectively
in Courts or before judicial authorities of the like
status in the Union ; and the Courts or authorities
in the Union shall have the same jurisdiction
in respect of all such snits, appeals, revisions, reviews,
executions, applications aud other proceedings, or
any of them, as if the same had been duly commenced and continued in such Courts or before such
authorities."
It is fairly obvious that this is a transitory regulation providing for a change over of proceedings from
one set of Courts in the Covenanting State to others
of like status in the Union and for their continuance
etc. in the latter Courts. It does not say that the
proceedings must be treated as having freshly commenced.
What is contemplated in the latter part of
the section is a notional commencement, if such a
term could be used.
'l'he section obviously means
that all rights which arose or are likely to arise in the
future shall remain intact notwithstanding the new
set-up, and that they would be dealt with by the
Union Courts in place of the Courts of the Covenant-
.ing State. There is nothing in the section to justify
the view that any taking away of a vested right of
appeal retrospectively was intended. The decision in
Colonial Sugar Refining Co. v. Irving(') clearly applies
to the facts, and the order of the High Court that
(1) [1905] A.C. 369.
195li
Ganpat Rai
Hira Lal
and Another
v.
Aggarwal
Chamber of
Oonimerce Ltd.
758
SUPREME COURT REPORTS
[1953)
the appeals are not competent is, in' om opinion,
erroneous.
The result is that Appeal No. 152 of .1951 is dismissed with costs throughout, while Appeals Nos. 167
and 167 A of 19.51 are allowed with costs throughout.
Appeal No. 12.5 dismissed.
Appeals Nos. 167 and 167 A .allowed.
Ghandrasekhara
Agents for the a.pp~llants in Appeals Nos. 167
AiyarJ.
and 167A: Mohan Behan Lal.
1958
March 12.
Agent for the appellant in Appeal No. 152 : Kitndan Lal Mehta.
Agent for respondents in Appeals Nos. 167 and
167 A: Naunit Lal.
Agent for respondent in Appeal No. 152: Mohan
Behari Lal.
HIRALAL AND OTHERS
v.
BADKULAL AND OTHERS.
[MEHR CHAND MAHAJAN and BHAGWATI JJ.]
Acknowledgment-Whether gives fresh cause of action-Practice
-Party in possession of documentary evidence-Duty to produce.
Where the defendants who had dealings with the plaintiffs
for several years signed the following entry in the plaintiffs' account book underneath the earlier entries:
"After adjusting the aceounts Rs. 34,000 found correct payable".
Held, that this amounted to an unqualified acknowledgment of
liability to pay and implied a promise to pay and could be made
the basis of the suit and gave rise to a fresh cause of action.
Maniram v. Seth Rup Chand (33 I.A. 165), Fateh Chn.nd v.
Ganga Singh II.L.R. 10 Lab. 745) and Kahan Chand Dularam v.
Daya1al Amritlal (I.L.R. 10 Lah. 748) relied on. Gh11lam M11rtuza
v. Fasih1mnissa (I.L.R. 57 All. 434) overruled.
It is not a sound practice for those desiring to rely upon a
certain state of facts to withhold from the court written evidence
which is in their possession which could throw light upon the.
issues in controversy and tc rely upon the mere doctrine of onus
of proof.
Murugesam Pillai v. Manickavasaka Pandara (44 I.A. 99)
referred to.