GURUSWAMI PILLAI Vs. VIRABHADRA TAVULKARAN

JUDGEMENT

(1.) In the Full Bench case (C.M.A. Nos. 155 and 403 of 1926) which was heard along with this case, we have held that where two Judges differ in a Chartered High Court it is Clause (36) of the Letters Patent that applies and not Section 98 of the Civil Procedure Code. Now, Clause (36) of the Letters Patent has been recently amended. The question naturally arises whether the amendment is retrospective. Accordingly the question referred to the Full Bench in this case is, does Clause (36) of Letters Patent as amended apply to an appeal which was pending at the time the amendment came into force?

(2.) It was held in Colonial Sugar Refining Co. V/s. Irwing (1905) A.C. 369 that a subject has got a vested right in an appeal and where an Act is passed abolishing the right of appeal, it cannot be used retrospectively so as to deprive him of the right of appeal in cases pending at the time the Act was passed. It has also recently been pointed out in Vasudeva Samiar, In re 2 that that decision is not in conflict with the later decision in Canada Cement Co. V/s. East Montreal (Town of) (1922) A.C. 249. where a Court was abolished. In Vasudeva Samiar, In re (1929) I.L.R. 52 M. 361: 56 M.L.J. 369 (F.B.) it was held that all appeals in force when a suit was instituted are preserved to it through the rest of its career unless the Legislature has either abolished the Court to which an appeal then lay or has expressly or by necessary intendment given the Act a retrospective effect. The same result was arrived at in Sheikh Sardar Ali v. Sheikh Dolliluddin (1928) 48 C.L.J. 150. Accordingly it has been contended by the learned Advocate for the respondents in this case that the amendment of Clause (36) of the Letters Patent does not operate retrospectively and the opinion of the senior Judge should prevail. The fallacy of this argument is obvious. The effect of the cases cited above is that the right of appeal which existed once can not be taken away by an Act unless it is expressly retrospective. The only logical effect of applying that principle should be that if two Judges hear a case, deliver their judgments and for some reason the senior Judge's judgment prevails, then the right of appeal which existed before to a Bench of three Judges is not taken away and continues to exist, but the effect of the amended Clause (36) of the Letters Patent is not to deprive the right of appeal but to change the procedure as to what two Judges should do when they find that they are about to differ. The clause says that the question shall be referred to a third Judge. To argue that the two shall continue to deal with the case as under the old clause and that, when their judgments are delivered, the rule that the senior Judge's judgment should prevail should still apply is to argue that a rule of procedure which ceased to exist must be applied so as to enable the party in whose favour the senior Judge's judgment is to put the opposite party to the necessity of an appeal and thereby to have the chance of that judgment not being appealed against. To insist on the application of such a procedure is really to say that a party has a vested right in two Judges continuing the old procedure and not referring to a third Judge. Now it is well established that a party can have no vested right in a mere right of procedure. Here what the respondent wants is not the right of appeal, for it is not he that loses the right of appeal. He wants certain procedure to be followed so as to put the opposite party to the necessity of appealing. In Attorney-General V/s. Sillem (1864) 10 H.L.C. 704: 11 E.R. 1200, the questions were whether the right of appeal can be created by a tribunal or by legislative authority only and secondly whether a new right of appeal would affect existing suits. On the first question, the noble Lords differed but on the second question Lords Westbury, Cranworth and Wensliey-dale expressed their opinions. Lord Westbury observed: It was strongly contended by the respondents that even if the Barons of the Exchequer had power to make the rules in question, they had no power to make them apply to pending proceedings, and that the attempt to do so was unjust. This argument is not, in my opinion, well founded. (Page 727.)

(3.) Lord Cranworth was of the same opinion. (Pages 735 to 737).