RAGHAVAN PILLAI Vs. SAINABA BEEVI

JUDGEMENT

(1.) THE appeal is against the judgment of at learned judge of this Court, decreeing the plaintiff's suit for a permanent injunction restraining the defendants from conducting the'viruthikulangara Wine Stores' in the plaint schedule building or from using the building for any purpose other than that for which it was let, viz. for conducting a gold trade. The trial court, the Munsiff of Kottayam dismissed the suit. The Appellate Judge viz, the subordinate Judge, Kottayam decreed the suit; and the learned judge in Second appeal, sustained the judgment and decree of the lower appellate court. He, however, grant d leave to appeal, which had occasioned this further appeal:

(2.) THE judgment of the learned judge was on 31st January, 1977, and leave to appeal was granted the same day on oral request of the appellants herein. The learned Advocate General appearing for the plaintiff-respondent raised the preliminary objection that the appeal is not maintainable. Under S. 5 (iii) of the Kerala High Court act, 1959 an appeal shall lie to a Bench of judges, from a judgment of a single judge, in the exercise of appellate jurisdiction, in respect of a decree or order made, in the exercise of appellate jurisdiction by a subordinate court, if the judge who passed such judgment, certifies that the case is a fit one for appeal. This is the provision of law under which the above appeal is preferred, The Civil Procedure code Amendment Act. 104 of 1976 came into force on 121977. S. 100a was added to the Civil Procedure Code by S. 39 of the Amending Act. The section is as follows: "100a. No further appeal in certain cases. Notwithstanding anything contained in Letters Patent for any High Court or is any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single judge of a High Court no further appeal shall lie from the judgment, decision or order of such Single Judge is such appeal or from any decree passed in such appeal. " The reference to the 'letters Patent' in the above provision is to Clause (15), of the Madras Letters Patent, and to similar provisions in the Letters Patents of the two other Presidency High Courts of bombay and Calcutta . These provisions in substance, authorise a further appeal from the decision of a Single Judge in Second Appeal, with the leave granted orally by the judge who heard and decided the case. Chapter V, S. 97 (1) and (2) of the C. P. C. Amendment act 1976, referred to earlier, reads: "97. Repeal and savings (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect and without prejudice to the generality of the provisions of S. 6 of the General clauses Act, 1897, " Clause (n) of S. 100a of the Civil Procedure Code introduced by Act 104 of 1976 provides: "s. 100a (n ). S. 100a, as inserted is the principal act, by S. 38 of this Act, shall not apply to or affect any appeal against the decision of a single judge of a High Court under any Letters Patent which had been admitted before the commencement of the said S. 38; and every such admitted appeal shall be disposed of as if the said S. 38 had not come into force. " Reference may also be made to R. 43 Clause (4) of the rules of the High Court of. Kerala, framed under Art. 225 of the Constitution, S 122 of the C. P. C. and all other enabling provisions The said rule provides that where an application for leave to appeal is granted, the applicant shall present the appeal together with a copy of the order granting the application within thirty days from the date of the order.

(3.) WE think that the argument of the learned Advocate general involves many assumptions and extensions, not warranted by the terms of the Statute. The ban against further appeals from Second Appeals imposed by s. 100a of the Act, is on its language, and in the light of well settled principles and judicial decisions, only prospective, and not retrospective. The judgment of the learned judge was delivered on 31-1-1977; and leave to appeal further was also granted by the judge on the same day. Whether leave was granted or not, a vested right of appeal accrued in favour of the appellant to carry up the matter in further appeal; this vested right has not been affected either expressly or by necessary implications by the terms of S. 100a. It is enough to refer to the judgment of the Supreme Court in Garikapati Veeraya v. N. Subbiab Choudhry & Others (AIR. 1957 SC. 540 ). In Para. 15 of the said judgment reference was made to two well known cases, one of the Calcutta High court, and the other of the Madras High Court. In the Calcutta case. Sadar Ali v. Dalimuddin (ILR. 56 Calc. 512 1928 Calc. 640) it was held by a Full Bench that clause (15) of the Letters Patent as it originally stood, which permitted a further appeal from a judgment in Second Appeal even without the leave of the single Judge, governed the position of an appeal, decided prior to the amendment of the Letters Patent making the leave of the judge necessary, and was in no way affected by the amendment. To the same effect was the decision of the Madras Full Bench in Vasudeva Swamiar in Re (ILR 52 Mad. 361 = AIR. 1929 mad. 381 ). A Full Bench of this Court in Lakshmi Amma alias Echuma Amma v. Devassy (1970 KLT. 204 at 213 para 9) has followed and restated the same principle. S. 100a of the CPC. introduced by the Amending Act 104 of 1976, would not, therefore, affect the vested right of further appeal against the Second appeal judgment which accrued to the appellant on 31-1-1977. Indeed, in pursuance, of that right, leave to appeal bad also been granted by the learned judge on 31-1-1977.