DAJISAHEB Vs. SHANKARRAO VITHALRAO

JUDGEMENT

(1.) THIS is an application for leave to appeal to the Supreme Court. The trial Court dismissed the plaintiff's suit and this Court in appeal set aside the decree of the trial Court and passed a decree in favour of the plaintiff. We sent down an issue to the trial Court to determine the value of the subject-matter of the suit, both at the time the suit was filed and also at the time of the passing of the decree in appeal, and the finding has been now returned to us. The finding is that the value of the subject-matter was between Rs. 11,000 and Rs. 13,000 both at the time of the filing of the suit and also at the time of the passing of the decree in appeal. The finding has not been challenged by Mr. Chandrachud, but his contention is that looking to the provisions of the Constitution the petitioner has no right of sp-peal to the Supreme Court.

(2.) UNDER Article 133 (1) of the Constitution, "an appeal shall lie to the Supreme Court from any judgment, decree, or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-- (a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law;" and the argument that has been advanced by Mr. Chandrachud is that inasmuch as the High Court is not in a position to certify that the value of the subject-matter in dispute is not less than Rs. 20,000, we should not allow the petitioner to appeal to the Supreme Court. It is not disputed that when the suit was filed the petitioner had a right to appeal either to the Privy Council or to the Federal Court. It is also well settled that a right of appeal is not a mere matter of procedure. It is a vested right and that vested right cannot be taken away retrospectively unless the Court discerns in the legislation dealing with the right of appeal a clear intendmont that such right was intended to be taken away. Under Section 110 of the Civil P. C. . the right to appeal to His Majesty in Council arose when the amount or value of subject-matter of the suit in the Court of first instance was Rs. 10,000 or upwards and the amount or value of the subject-matter in dispute on appeal was also the same. The jurisdiction of the Privy Council came to an end after Independence and the Indian Legislature passed Act I of 1948 called the Enlargement of Jurisdiction of the Federal Court Act, and by that Act the jurisdiction that was vested in the Privy Council was conferred upon the Federal Court to hear all appeals which lay to the Privy Council under Section 110. By that Act also the amount or value of the subject-matter was the same as the value of the subject-matter under Section 110 of the Civil P. C. And then we have the Constitution which under Article 133 (1) raised th" amount or value of the subject-matter from Rs. 10,000 to Rs. 20,000. Prima facie, if the petitioner had the right to appeal to the highest Court in the land when the suit was filed from which the appeal arises, then there is nothing in the language of Article 133 (1) which would lead us to hold that the Constituent Assembly wanted to deprive the litigant of that right. But what is very ingeniously urged before us by Mr. Chandrachud is that the principle of the right of appeal being a vested right only applies when an appeal lies to the same Court. But when a new Court is created by the Con-sitution and a right of appeal is for the first time granted to that Court, then that principle does not apply. In other words, Mr. Chandrachud's argument is that the Supreme Court was set up as a new Court under the Constitution, its jurisdiction was for the first time defined under the Constitution, and for the first time a litigant was given a right of appeal under Article 133 (1 ). Mr. Chandrachud further says that whatever right of appeal the litigant had was a right of appeal to the Privy Council and the Federal Court. Those two Courts being abolished, that right no longer survives and the litigant is not entitled to say that because he had a right to appeal to a Court which no longer exists he therefore has also a right of appeal to a new Court which has been set up with a different jurisdiction. It may seem at first blush that this is a very attractive argument, but when one considers the different provisions of the Constitution, it seems to us clear that in many respects the Supreme Court was intended to take the place of the Privy Council and the Federal Court. It must not be forgotten that our Constitution makers were not writing on a clean state. A great deal had already been written on the state which could not be obliterated, and therefore, it is in this context that the various provisions of the Constitution must be construed.

(3.) TURNING first to Article 374 (2), that article provides that all suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of the Constitution shall stand removed to the Supreme Court and the Supreme Court has been given jurisdiction to hear and determine all those matters. Therefore the effect of the Federal Court ceasing to function and thc Supreme Court being set up was not to do away with all matters which were pending before the Federal Court so as to compel the litigant to go afresh to the new Court which had been set up under the Constitution, but to continue as it were the Federal Court in the new Court which was established to the extent of matters pending before the older Court. Then we come to Article 135 and that provides: