UDAYBHAN Vs. FIRM SHANKAR LAL MOTILAL

JUDGEMENT

(1.) THIS is a second appeal by the Defendant in a suit for the recovery of Rs. 2893 -6 -0 in respect of certain transaction in silver. The suit was filed by the Plaintiff Respondent on 3 -4 -1947 in the Court of Munsiff Indore. The trial Court decreed the Plaintiff's claim to the extent of Rs. 1226/6/ -. The District Judge of Indore held the Defendant's appeal from the decision of the Munsiff as barred by time, and rejected it. Thereupon, the Defendant preferred the present second appeal to this Court on 22 -11 -51. Under the rules of this Court in force at the time of the institution of the appeal, an appeal against a decree passed by a District Judge in the exercise of his appellate jurisdiction and arising out of a suit for money or moveable property of value exceeding Rs. 2000/ - or a suit for land or other suit of value exceeding Rs. 1000/ - for purposes of jurisdiction had to be heard by a Division Bench. Accordingly, this appeal was first placed before a Division Bench on 27 -11 -51 when it was directed to put up with the record of the case. On 24 -12 -1951 the Rules of this Court were altered so as to provide that an appeal from an appellate decree of a District Court in which the value of the subject -matter in appeal or of the subject -matter in appeal and any cross -objection therein under Order 41, Rule 22 did not exceed Rs. 4000 could be heard and disposed of by a Judge sitting alone. When the appeal came on for hearing before a single Judge under the new Rules, an objection was taken on bahalf of the Appellant that the new rule was inapplicable to the hearing of the appeal and a single Judge was not competent to hear and dispose of the appeal. Kaul C.J. before whom the appeal was placed for hearing passed an order on 7 -1 -1952 directing that the appeal be placed before a Division Bench for the consideration of the question raised as to the jurisdiction of a Single Judge to hear and dispose of the appeal. The appeal was then placed before a Division Bench consisting of my Lord the Chief Justice and Mehta J. In view of the considerable importance of the question, likely to affect a number of appeals pending in this Court, the learned Chief Justice and my brother Mehta directed on 22 -4 -1952 that the appeal be placed before a Full Bench.

(2.) NO specific question has been referred to the Full Bench for opinion. But I take it that the question for our decision is whether the new Rule 1, (II) of Chap. 1 of the Rules of Madhya Bharat High Court governs appeals arising out of cases instituted before 24 -12 -1951 that is, before the rule came into force.

(3.) MR . Waghmare learned Counsel for the Respondent supports the Appellant on the question of the jurisdiction of a single Judge to hear and dispose of this appeal. We have, however, had the advantage of hearing able and elaborate arguments of Mr. Chitale, Advocate -General in support of the opposite view and we are indebted to him for appearing as 'amicus curiae'. The argument of Mr. Chitale, briefly summarised, is that the Appellant cannot avail himself of the Constitution and rules of the Indore High Court which have ceased to exist and of which this Court is not a successor Court; that the Madhya Bharat High Court is a new Court and appeals to this Court and the mode of their hearing is governed by its own Constitution, namely, the Madhya Bharat High Court Act, 1949 and the rules of practice and procedure framed by this Court under Section 27 of the Act. In support of this proportion Mr. Chitale relies on a Full Bench decision of this Court in - 'Bharose Lal v. Dwarka Prasad' 1949 Madh BLR 8 (F) and on - 'State of Serai Kella v. Union of India' : AIR 1951 SC 253 (G). It is further argued that under Section 27 of the High Court Act this Court has the power to make rules for the exercise of the original and appellate jurisdiction vested in it, by one or more Judges or by Division Courts and also amend them; that a rule laying down the powers of a single Judge or a Division Bench is a rule of practice and procedure as to the internal, arrangement within the Court for disposal of cases and that no party has a vested right of being heard by a particular Judge or by a particular number of Judges; and that by the change in the rules the Appellant's right of second appeal to the High Court under Section 23 of the High Court Act read with Section 100, Code of Civil Procedure is not affected. Mr. Chitale cites - 'Har Prasad v. Boolchand' : AIR 1937 All 19 (H); - 'Radha Kishan v. Shridhar, AIR 1950 Nag 177 (I); - : AIR 1952 P&h 103 (E)'; and - ' : AIR 1928 Cal 640 (D)' to support the contention that a party cannot claim that his case should be heard by so many Judges any more than by such and such Judges.