GOKUL DAS Vs. MOHAN KUNWAR BAI

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff from a decision of a Division Bench of this Court, whereby the decree of the Additional District Judge, Indore, was set aside and the Plaintiff's claim for the specific performance of a contract for sale of a house was dismissed with costs throughout. The suit out of which this appeal arises was instituted on 2 -7 -1948 by the Plaintiff in the Court of Additional District Judge, Indore. A decree in favour of the Plaintiff was made by the trial Court on 28 -2 -1950. The Defendant, then, filed an appeal to this Court on 29 -6 -1950 from the decree of the Additional District Judge Indore. The appeal was heard by a Division Bench and allowed on 12 -7 -1951 and the Plaintiff's suit was dismissed. The present appeal is directed against the decision dated 12 -7 -1951 of the Division Bench and was filed on 2 -11 -1951.

(2.) THE preliminary question that arises for consideration in this appeal is as to the competence of the appeal. Prima facie under the Madhya Bharat High Court Act, 1949 (Act 8 of 1949), as amended by Ordinance No. 1 of 1950, no appeal lies from any judgment, decree, order or sentence passed or made by any Division Bench of this Court after 25 -1 -1950. Mr. Bharucha learned Counsel for the Appellant admits that the present appeal is not under the old Section 25 of the High Court Act which provided for appeals under certain conditions from decisions of any Division Bench and which was repealed on 25 -1 -50 by Ordinance No. 1 of 1950. He, however, claims that the appeal is under Section 21(c), Indore High Court Act 1948 (Act 4 of 1948 of Indore State). The argument is that on the date of the institution of the suit in the Court of the Additional District Judge, the Indore High Court Act, 1948 existed; that under Section 21 of the Act an appeal lay to the Indore High Court from a decree passed by the District Judge in the exercise of his original civil jurisdiction and a further appeal lay within the High Court itself from the decision of the Court in a first appeal from decree of the District Judge, that this right of two appeals which according to the Full Bench decisions of this Court in - 'Gulab Chand v. Kudi Lal' : AIR 1951 MP 1 (A) and in - 'The Rajkumar Mills v. Pratap Singh and the Hukam Chand Mills Ltd.' (Indore Bench) Second Appeal No. 24 of 1950 (Madh -B) (B), is a right which vested in the Appellant at the time of the filing of the suit; that this right of further appeal in the High Court has not been taken away by express provisions or necessary intendment of any piece of legislature; and that on the other hand the provision contained in Madhya Bharat High Court Ordinance, 1948 (Ordinance 2 of 1948) and Madhya Bharat High Court Act (Act 8 of 1949) by which this Court was established and then continued and the Indore High Court ceased to exist, that the High Court is to

(3.) AS Mr. Chitale had addressed us arguments on an allied question in 'Udaybhan v. Firm Sankarlal, AIR 1953 MP 209 (FB) (D), appearing as amicus curiae, we thought it desirable to hear him in that capacity in this case also. Mr. Chitale supported the arguments of the learned Counsel for the Respondent and added that even accepting as correct the proposition that as the hearing of an appeal by a Single Judge or a Division Bench of the High Court is merely a matter of procedure, the Appellant would have been entitled under Section 21, Indore High Court Act to a further appeal within the Indore High Court if his appeal from the decree of the Additional District Judge had been heard by a Division Bench, the Appellant cannot claim that right in relation to this Court for the reason that the opening words of Section 21, Indore High Court Act, namely "Save as otherwise provided by any law for the time being in force" clearly show that, that right would now be subject to the provisions of the Madhya Bharat High Court Act, 1949. It is contended that whatever might have been the law prior to 25 -1 -50 with regard to appeals from decisions of a Division Bench of this Court, on 25 -1 -50 this Court was deprived by Ordinance No. 1 of 1950 of any jurisdiction to hear and determine any appeal from the decisions of any Division Bench given after 25 -1 -50 and that as under Article 225 of the Constitution of India the jurisdiction of this Court is the same as that vested immediately before the commencement of the Constitution and as on that date this Court had no jurisdiction to hear and determine any appeal against the decisions of any Division Bench given after 25 -1 -50, it follows that this Court has no jurisdiction to entertain, hear and determine this appeal. In support of this contention Mr. Chitale has cited a Full Bench decision of this Court in - 'Baldeo Singh v. The State, AIR 1951 MP 149 (FB) (E) relying on - 'James Chadwick and Bros. Ltd. v. National Sewing Thread Co. Ltd.' : AIR 1951 Bom 147 (F); - Vaman Ravji v. Nagesh Vishnu' : AIR 1940 Bom 216 (G) and - 'Hanuman Chamber of Commerce Ltd. Delhi v. Jassa Ram Hira Nand, AIR 1948 Lah 64 (H). Mr. Chitale further argued that this appeal is really what is commonly described as "inter Court -Appeal" that appeals within the High Court itself are the peculiarities of the Constitution and the rules of practice and procedure of the specific High Court; and that if the Court is abolished its Constitution and rules cannot survive and therefore, even if this appeal could have been entertained by the Indore High Court under its own Constitution, if the Constitution and rules of practice and procedure of this Court do not provide for an appeal from a decision of a Division Bench, then the appeal cannot be entertained.