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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.C.Majumdar
  • S.C.Ghosh
  • Nakuleshwar Prasad
  • Murtaza Fazal Ali
Judges
  • Ramaswami
  • Jamuar, JJ.
Acts
  • SECTION 11 SUITS VALUATION ACT 1887
  • Section 110 of the CPC, read with Article 135 of the Constitution.
  • provisions of Article 133 or Article 134
  • Jurisdiction) Act (Act 1 of 1948).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.C.Majumdar
  • S.C.Ghosh
  • Nakuleshwar Prasad
  • Murtaza Fazal Ali
Judges
  • Ramaswami
  • Jamuar, JJ.
Acts
  • SECTION 11 SUITS VALUATION ACT 1887
  • Section 110 of the CPC, read with Article 135 of the Constitution.
  • provisions of Article 133 or Article 134
  • Jurisdiction) Act (Act 1 of 1948).
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The dispute concerns a building in Purulia town called Pratap Natya Mandir. The plaintiffs' case was that defendant No. 2 executed a lease dated 3-11-1941 (registered 15-11-1941) in their favour; they sued on 30-8-1943 for a declaration and for a permanent injunction to prevent defendant No. 1 from executing a decree which defendant No. 1 had obtained in Second Appeal No. 66 of 1943. The petitioner (defendant No.1) asserted that on 5-4-1940 defendant No. 2 had executed a registered lease in the petitioner's favour and, on that basis, defendant No.1 had earlier sued defendants Nos. 2 and 3 for recovery of possession.

The suit was decreed at first instance; the decree was affirmed in appeal by the District Judge; in second appeal the High Court affirmed the decree on 6-5-1943 with certain modifications. The Subordinate Judge later decreed the plaintiffs' suit (the present plaintiffs), and that decree was affirmed by the District Judge in appeal. On 26-4-1943 defendant No.1 preferred a second appeal to the High Court valued at Rs. 2,100. The Stamp Reporter objected, asserting the valuation was Rs. 9,000 and that a first appeal ought to have been preferred. On 9-2-1948 the High Court converted the second appeal into a first appeal. Following a Full Bench decision in Ramdeo v. Raj Narain (AIR 1949 Pat 278) concerning valuation and the Suits Valuation Act, the Stamp Reporter directed that the appeal ought to be treated as a second appeal; accordingly, on 11-3-1949 a Bench ordered reconversion into a second appeal. The case was treated and heard as a second appeal and dismissed on 13-4-1951.

This application concerns leave to appeal to the Supreme Court on behalf of defendant No.1 against the High Court's judgment in the second appeal dated 13-4-1951. The High Court initially remanded the matter to the Subordinate Judge of Purulia to enquire into the question of valuation; the Subordinate Judge reported the valuation of the subject-matter of the suit as Rs. 11,915 on 30-8-1943 and that the present valuation was of the same amount.

Legal Issues Presented

  1. Whether Article 133(1) of the Constitution, which requires the amount or value of the subject-matter in dispute to exceed Rs. 20,000 for an appeal to the Supreme Court, has retrospective effect so as to take away a right of appeal already vested under Section 110 of the Code of Civil Procedure (CPC) prior to promulgation of the Constitution.
  2. Whether the petitioner had a right of appeal to the Supreme Court under Section 110 of the CPC (as it existed when the suit was instituted) and related transitional provisions (including Article 135 and Articles 374(2)), given the valuation reported by the Subordinate Judge.
  3. Whether the requisites of Section 110 of the CPC have been complied with in this case (i.e., whether a substantial point of law is involved) so as to permit leave to appeal to be granted.

Arguments of the Parties

Petitioner's Arguments (Mr. S. C. Ghosh)

  • The petitioner had a right of appeal under Section 110 of the CPC before the Constitution came into force; that right was vested and substantive and therefore continued despite Article 133(1) requiring a Rs. 20,000 threshold.
  • Relied on a Bombay High Court decision, Dajisaheb v. Shankarrao (AIR 1952 Bom 303), in support of the contention that the vested right to appeal survives the new valuation threshold.
  • The appeal ought to have been treated by the High Court as a first appeal rather than as a second appeal, and the Full Bench decision in Ramdeo v. Raj Narain (AIR 1949 Pat 278) should be reconsidered (this contention was specifically raised by learned counsel).

Opposite Party's Arguments (Mr. Mazumdar)

  • Objected to the Subordinate Judge's report of valuation, contending the valuation was made on an incorrect principle (it was said to be based on profit from the cinema business rather than on rental), and raised several objections to the report.
  • Asserted that the second appeal before the High Court was dismissed on 30-4-1951 (this was relied upon in argument when addressing when the right of appeal might be considered to have arisen).

The opinion records that the valuation objections by Mr. Mazumdar were not raised before the Subordinate Judge and therefore were overruled.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ramdeo v. Raj Narain, AIR 1949 Pat 278 (Full Bench) Held that clauses (a) & (b) of sub-section (1) of Section 11 of the Suits Valuation Act, 1887, are disjunctive (not conjunctive); disposal of an appeal by a lower appellate court could not be questioned as being without jurisdiction on the sole ground that valuation exceeded that court's pecuniary jurisdiction; absence of pecuniary jurisdiction does not automatically amount to prejudice in disposal on merits. The decision led to the Stamp Reporter directing that the present appeal be treated as a second appeal; consequently the High Court reconverted a first appeal into a second appeal in this case and subsequently heard and dismissed it as a second appeal on 13-4-1951.
Dajisaheb v. Shankarrao, AIR 1952 Bom 303 Relied upon by petitioner to support the proposition that a pre-existing vested right of appeal survives post-Constitution valuation thresholds. The Court stated that reliance on this decision supported the petitioner's contention and observed that the contention was well-founded.
Colonial Sugar Refining Co. Ltd. v. Irving, (1905) AC 369 Authority for the proposition that a right of appeal is substantive (not merely procedural) and that the right to enter the superior court is deemed to arise to a litigant on the date of the institution of the suit. The Court applied the reasoning of Lord Macnaghten in this authority to conclude that the petitioner's right of appeal arose on the date of institution of the suit (30-8-1943) and therefore could not be taken away retrospectively by Article 133(1) unless explicitly stated.
Sadar Ali v. Dolimuddin, AIR 1928 Cal 640 Held by a Special Bench of the Calcutta High Court that the right of appeal is deemed to arise at the date of institution of the suit and that an amendment could not be given retrospective effect to take away that right. The Court cited this case to support the principle that the right to appeal is vested as of the institution date of the suit and that retrospective application of procedural amendments that deprive such a right is inappropriate.
In re Vasudeva Samiar, AIR 1929 Mad 381 Similar authority to Sadar Ali on the timing of vesting of the right of appeal (deemed to arise at institution of suit). Used as additional supporting authority for the conclusion that the petitioner's right of appeal vested on 30-8-1943.

Court's Reasoning and Analysis

The Court first addressed the factual question of valuation. It remanded the matter to the Subordinate Judge for inquiry; the Subordinate Judge reported the valuation as Rs. 11,915 at the time of institution (30-8-1943) and the same at the present moment. The Court overruled objections to that report because the objections were not taken before the Subordinate Judge and because the Subordinate Judge had found there was no evidence of profit from the cinema business on which a different valuation might have been based.

The Court then examined whether Article 133(1) of the Constitution (requiring a value exceeding Rs. 20,000 for an appeal to the Supreme Court) operates retrospectively to divest the petitioner of a right of appeal that existed at the time the suit was instituted. The Court stated the general principle that a right of appeal is substantive (not merely procedural) and cannot be taken away retrospectively except by clear statutory language to that effect. The Court relied on Colonial Sugar (1905) AC 369 and Indian High Court authorities (Sadar Ali v. Dolimuddin and In re Vasudeva Samiar) to conclude that the right of appeal is deemed to arise on the date of institution of the suit (30-8-1943) and therefore vested before the Constitution came into force.

The Court further considered transitional and statutory measures: the Federal Court (Enlargement of Jurisdiction) Act (Act 1 of 1948) which had expanded the Federal Court's appellate jurisdiction; Article 135 of the Constitution which preserves jurisdiction where the Federal Court had jurisdiction immediately before the commencement of the Constitution; and Article 374(2) which transfers suits, appeals and proceedings pending in the Federal Court to the Supreme Court. The Adaptation of Laws Order, 1950, adapted Section 110 of the CPC to conform with Article 133(1) (raising the monetary threshold to Rs. 20,000) but included Section 27 saving the previous operation of rights already acquired.

On the combined effect of these provisions and precedents, the Court concluded that the petitioner had a right to appeal to the Supreme Court under Section 110 of the CPC as the right had vested at the institution of the suit and was preserved by the transitional provisions and the Adaptation Order's savings clause. The Court qualified that this entitlement exists provided the petitioner can make out that a substantial point of law is involved under Section 110.

Finally, the Court addressed the procedural classification of the appeal (first versus second appeal) in light of the Full Bench decision in Ramdeo v. Raj Narain and the subsequent reconversion history; after hearing both sides the Court indicated it was inclined to think the requirements of Section 110 had been complied with in this case.

Holding and Implications

Holding: The Court allowed the application and granted a certificate for leave to appeal to the Supreme Court under Section 110 of the CPC read with Article 135 of the Constitution. The petitioner was awarded costs (hearing fee five gold mohars).

Implications

  • Direct effect on the parties: The petitioner (defendant No.1) is granted leave to appeal to the Supreme Court and is entitled to costs as specified by the Court.
  • On the valuation/threshold issue: The Court held that Article 133(1) does not have retrospective effect to divest a right of appeal which had vested before the Constitution came into force; the petitioner's right, having vested on the date of institution of the suit (30-8-1943), survives the post-Constitution valuation threshold (subject to the requirement that a substantial point of law is involved under Section 110).
  • Transitional law application: The Court relied on the transfer of Federal Court jurisdiction to the Supreme Court (Article 135, Article 374(2)) and the saving provision in the Adaptation of Laws Order, 1950 (Section 27) to preserve previously acquired rights.
  • Precedential effect: The opinion applies and relies on existing authorities and transitional statutory provisions to resolve the dispute about retrospective application; it does not state that it is creating a new principle beyond applying those authorities and provisions to the facts of this case.

Final line of the opinion: "Application allowed." (The judgment orders granting the certificate and awarding costs are set out in the text above.)

Show full summary ...

    Narayan Prasad Sukul v. Raj Kishore Misra And Others Opposite Party.

    1. This application is for leave to appeal to the Supreme Court on behalf of defendant No. 1 against a judgment of the High Court in second appeal dated 13-4-1951. The dispute relates to a building in the Purulia town known as Pratap Natya Mandir.

    2. According to the case of the plaintiffs, defendant No. 2 had executed a lease dated 3-11-1941, in their favour, which was registered on 15-11-1941. The plaintiffs brought the suit on 30-8-1943, asking for a declaration and also for permanent injunction against defendant No. 1 from executing the decree which the latter had obtained in Second Appeal No. 66 of 1943. The case of the petitioner, was that, on 5-4-1940, defendant No. 2 executed a registered lease in his favour, and, upon the basis of this transaction, defendant No. 1 had brought a suit against defendants Nos. 2 and 3 for recovery of possession of the building in dispute.

    3. The suit was decreed, and the decree was affirmed in appeal by the District Judge, and, in second appeal, the High Court affirmed the decree on 6-5-1943, with certain modification. Upon a consideration of the rival contentions in the present case the Subordinate Judge decreed the suit of the plaintiffs which was affirmed by the District Judge in appeal. On 26-4-1943, defendant No. 1 preferred a second appeal in the High Court which was valued at Rs. 2,100/-. The Stamp Reporter objected that the valuation was Rs. 9,000/- and a first apoeal ought to have been preferred. On 9-2-1948, the second appeal was converted into a first appeal by the order of the High Ccurt. On 4-8-1948 a Full Bench of the Court decided in — ‘Ramdeo v. Raj Narain*’, AIR 1949 Pat 278 (A) that clauses (a) & (b) of sub-section (1) of Section 11 of the Suits Valuation Act, 1887, were disjunctive and not conjunctive, and that under S. 11 of the Act the disposal of the appeal by the lower appellate Court could not be questioned as being without jurisdiction on the ground of the valuation being beyond the pecuniary jurisdiction of that Court. It was further held by the Full Bench that simply because the lower appellate Court had no pecuniary jurisdiction over the appeal, which should have been heard as a first appeal in this Court, would not by itself amount to prejudice in the disposal of the case on merits. After the decision of the Full Bench, the Stamp Reporter said that the present suit should be treated as second appeal. Accordingly, on 11-3-1949 a Bench of this Court ordered that the first appeal would be reconverted into a second appeal. On 13-4-1951, the case was treated and heard as second appeal and was dismissed.

    4. When this matter came up before the High Court in the first instance, we directed that the case should be remanded to the Subordinate Judge of Purulia for making an enquiry into the question of valuation. The Subordinate Judge has now made a report stating that the valuation of the subject-matter of the suit was Rs. 11,915/- on 30-8-1943, and the valuation of the subject-matter at present in dispute is of the same extent. Mr. S.C Ghosh who appears on behalf of the petitioner, contended that the petitioner had a right of appeal under Section 110 of the CPC, before the promulgation of the Constitution of India, and that right of appeal was a vested right, and would continue irrespective of the fact that Article 133(1) stipulates that the valuation of the subject matter in dispute should be not less than twenty thousand rupees. In support of his argument, learned Counsel relied on a decision of the Bombay High Court, — ‘Dajisaheb v. Shankarrao’, AIR 1952 Bom 303 (B). We think that the contention of Mr. S.C Ghosh on this point is well-founded. In the present case, the learned Subordinate Judge has valued the subject-matter in dispute at a sum of Rs. 11,915/-. On behalf of the opposite party, Mr. Mazumdar raised several objections to the report of the Subordinate Judge. Learned Counsel said that the valuation has been made on a wrong principle. But no such objection was raised before the Subordinate Judge before whom the opposite party appeared and contested the valuation. Counsel also stated that the valuation has been made on the profit from the cinema business, and not on the rental paid. This objection also was not raised before the learned Subordinate Judge who said that there was no evidence produced by the parties to show what was the profit from the cinema business.

    5. The objections of Mr. Mazumdar, must therefore, be overruled, and the report of the learned Subordinate Judge must be accepted as correct, and the valuation of the subject-matter in dispute must be taken to be a sum of Rs. 11,915 at the time of the institution of the suit and at the present moment when leave to appeal to the Supreme Court is sought. If that is the position, it is clear that, under Section 110 of the CPC, the petitioner had a right of appeal either to the Federal Court or to the Judicial Committee of the Privy Council at the time when the suit was instituted. Article 133(1) of the Constitution provides that an appeal lies to the Supreme Court only in a case where the amount or value of the subject-matter in dispute is over twenty thousand rupees. The question that arises in this case is whether Article 133(1) has retrospective effect, and whether it takes away the right of appeal which the petitioner had. In our opinion there is nothing in Article 133(1) to suggest that the right of appeal which had already vested in the petitioner is adversely affected. It is well settled that a right of appeal is not a mere matter of procedure, but it is a substantive right which cannot be taken away retrospectively unless the legislation clearly states, either expressly or by necessary implication, that the vested right has been taken away (see — ‘Colonial Sugar Refining Co. Ltd. v. Irving’, (1905) AC 369 (C). But, when did the right of appeal vest in the petitioner in this case? It was pointed out on behalf of the opposite party that the second appeal before the High Court was dismissed on 30th April, 1951. But that is not the date for the purpose of determining when the right of appeal arises. The reasoning of Lord Macnaghten in (1905) AC 369 (C) is conclusive authority to show that the right of appeal is not a mere matter of procedure and that the right to enter the superior Court is deemed to arise to a litigant on the date of the institution of the suit even before any decision has been given by the inferior court. The reason is that a suit and all appeals from that decree made therein are regarded as one “Legal proceeding” and in — ‘Sadar Ali v. Dolimuddin’, AIR 1928 Cal 640 (D) it was held by a Special Bench of the Calcutta High Court that the right of appeal is deemed to arise to the litigant at the date of the institution of the suit and that the amendment of the Letters Patent which came into effect on 14-1-1928 could not be given retrospective effect (see also — ‘In re Vasudeva Samiar’, AIR 1929 Mad 381 (E). Applying the principle to the present case it is clear the suit was brought by the plaintiff on 30-8-1943 and the right to appeal to the Federal Court and to His Majesty in Council arose on that date. There are important considerations in the present case which suggest that this right of appeal, which the petitioner had, has been clearly-saved. In the first place, it is important to state that after the passing of the Indian Independence Act, and before the commencement of the Constitution, the jurisdiction of the Federal Court was enlarged and the appellate jurisdiction of the Privy Council in civil cases was transferred to the Federal Court by the Federal Court (Enlargement of Jurisdiction) Act (Act 1 of 1948). Under this Act, appeals, in all civil cases from which a direct appeal could have been taken to His Majesty in Council either with or without special leave could lie to the Federal Court under the provisions of Code of Civil Procedure, 1908. After the Constitution of India was promulgated, the appellate jurisdiction of the Federal Court was transferred to the Supreme Court. Article 135 of the Constitution states:

    “Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of Article 133 or Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.”

    6. In this connection Article 374(2) is also important. Article 374(2) states:

    “All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered to or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.” Upon an examination of Articles 374(2) and 135 it is clear that though the Supreme Court may have no jurisdiction under Articles 133 and 134 still if in respect of that matter the Federal Court had jurisdiction, the Supreme Court also would by reason of Article 135 have the same jurisdiction in respect of that matter. There is a further consideration. By the Adaptation of Laws Order, 1950, Section 110 of the CPC, was adapted to bring it into conformity with Article 133(1) and the sum of Rs. 20,000 was substituted for the sum of Rs. 10,000 in S. 110 and other consequential amendments were made. Section 27 of the Adaptation of Laws Order, 1950, is very significant. Section 27 states that

    “nothing in this Order shall affect the previous operation of or anything duly done or suffered under, any existing law, or any right, privilege, obligation or liability, already acquired…..

    7. For these reasons, we think that the petitioner has a right of appeal to the Supreme Court in this case under Section 110 of the CPC provided he I makes out that a substantial point of law is involved.

    8. It was contended by Mr. S.C Ghosh that the appeal ought to have been treated by the High Court as a first appeal, and not as a second appeal, and that the decision of the Full Bench in AIR 1949 Pat 278 (A) requires reconsideration. After having heard Mr. Mazumdar, who appears on behalf of the opposite party, we are inclined to think that there is case, and that the requirements of Section 110 of the CPC, have been complied with.

    9. We, accordingly, allow this application, and grant a certificate to the petitioner for leave to appeal to the Supreme Court under Section 110 of the CPC, read with Article 135 of the Constitution. The petitioner is entitled to his costs; hearing fee five gold mohars.

    A/M.K.S

    10. Application allowed.

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    Comments

    Narayan Prasad Sukul v. Raj Kishore Misra And Others Opposite Party.
    (Mar 5, 1953)