KOCHUPENNU KOCHIKKA Vs. KOCHIKKA KUNJIPENNU

JUDGEMENT

(1.) This case has come up before the Full Bench for an authoritative decision on the objections raised to the competency of a Single Judge to hear the appeal. The suit out of which this appeal has arisen, was valued at more than Rs. 1,000 and it was filed in the Munsiffs Court at Karunagapally. An order passed by that court in execution of the decree in the suit, was the subject matter of an appeal in the Sub-Court at Quilon, and it is against the appellate order of that court that the present second appeal has been filed on 5th February 1959 when the Travancore-Cochin High Court Act (Act V of 1125, as amended by Act I of 1952) was in force. Under that Act, a Single Judge of the High Court had the power to hear only such of the second appeals as would come within the limit prescribed by clause [c] of sub-section [4] of S.20 of that Apt. Every appeal valued at Rs. 1,000 or less from an appellate decree and every appeal from an appellate order where the subject matter of the suit is valued at Rs. 1,000 or less came under this category. Naturally, therefore, the other second appeals which were beyond the aforesaid limitations had to be heard by a Division Bench consisting of two Judges. By sub-section [2] of S.11 of the Kerala Civil Courts Act (Act I of 1957), the pecuniary jurisdiction of Munsiffs Courts was raised and fixed at the limit of Rs. 5,000. S.13 of the same Act provided that appeals from decrees and orders of a Munsiffs Court shall lie to the District Court and that appeals and orders from decrees and orders of a Subordinate Judges Court where the amount or value of the subject matter of the suit does not exceed Rs. 7,500 shall also lie to the District Court. Second appeals against decrees and orders coming under these two categories were also provided for by S.12 of the same Act. These two sections indicated the upper limit of the valuation of a second appeal. This limit has undergone a change by the recent amendment of S.13 of the Kerala Civil Courts Act, brought about by the passing of the Kerala Civil Courts (Amendment) Act, Act XII of 1959. By S.4 of the amending Act, the pecuniary limit of Rs 7,500 provided for in the main Act (Act I of 1957) was raised to Rs. 10,000. But prior to the passing of Act XII of 1959, the Kerala High Court Act (Act V of 1959) was passed. The President gave his assent to this Act on 6th February 1959. This Act was brought into force with effect from 9th March 1959 by the issue of a notification as contemplated by sub-section [2] of S.1 of the Act.

(2.) The provisions of the Travancore-Cochin High Court Act (Act V of 1125) as amended by Act I of 1952, in so far as they relate to matters provided in the Kerala High Court Act, were repealed by S.9 of the latter Act. S.3 of this Act enumerates the powers of a single Judge. Under clause [e] of sub-section [13] of S.3, a single Judge is empowered to hear an appeal against any appellate decree or order. In other words, the new Act empowers a Single Judge to hear even those second appeals which had to be heard by a Division Bench as per the provisions of the High Court Act which was in force till 9th March 1959. By virtue of the provision in the new Act, the present second appeal was posted for hearing before a Single Judge. When the appeal came on for hearing, the learned counsel for the appellant raised an objection that a Single Judge has no jurisdiction to hear the second appeal and contended that it ought to be heard by a Division Bench, consisting of two Judges. The learned counsel took up the position that the appellant had already obtained a vested right to have the appeal heard by a Bench of two Judges and that such right is not taken away by the Kerala High Court Act. He further contended that this Act could not have any retrospective operation. In view of the importance of the legal points raised on behalf of the appellant, the learned Single Judge before whom the appeal came on for hearing, referred the case to a larger Bench for an authoritative decision on those points. The case has accordingly been posted before this Full Bench. Permission was also granted to the advocates appearing in second appeals coming under the same category as the one at hand, to intervene and to contribute their arguments in respect of the legal points raised on behalf of the present appellant. Notice was given to the Advocate General also and we had the benefit of his valuable assistance in clarifying the points raised on behalf of the appellant.

(3.) Before the Full Bench, learned counsel for the appellant went to the extent of questioning the validity of the Kerala High Court Act and took up the extreme position that in passing the Act the State Legislature has transgressed the limits of its legislative competence. It was contended that the provisions contained in the Act deal with the constitution, organisation, jurisdiction and powers of the High Court and that Parliament alone could legislate on such topics. For this reason, it was contended that the Act is ultra vires the powers of the State Legislature. In view of the stand taken up against the validity of the Act, the position that the Act cannot have any retrospective operation so as to affect the alleged vested right of the appellant, was urged only as an alternative contention.