ORDER OF REFERENCE

Bose, C.J:— Counsel for the appellant challenges the jurisdiction of a single Judge to hear this appeal. The appeal is over Rs. 2,000 in value. According to the affidavit the subject-matter of the appeal is now worth over a lakh of rupees. If a single Judge hears it no appeal will lie to the Federal Court because of Section 111 of the CPC, but if a Division Bench hears it an appeal will lie as of right. Up till 27th May 1949 this appeal would have been beard by a Division Bench but because of the alteration in the Rules of this Court effected on 27th May 1949 all second appeals have now to be heard by a single Judge. This is a second appeal, but it was filed on 13th October 1945. Counsel for the appellant contends that a right of appeal is a vested right and relies on Colonial Sugar Refining Co. v. Irving, 1905 A.C 369 : (74 L.J P.C 77); Delhi Cloth and General Mills Co. v. Income-tax Commissioner, Delhi, 9 Lah. 284 : (A.I.R (14) 1927 P.C 1927); Bhagwat Rao v. Damodhar, I.L.R (1938) Nag. 91 at p. 98 : (A.I.R (25) 1938 Nag. 112) and Sadar Ali v. Doliluddin, A.I.R (15) 1928 Cal. 640 : (56 Cal. 512 F.B). Relying on the same rulings he contends, (1) that this vested right to have his case heard by a Division Bench with a right of appeal over to the Federal Court cannot be taken away by the rule-making powers of the High Court and (2) that in any event as the Rule is not expressly made retrospective it cannot affect pending appeals. Therefore a Bingle Judge has no jurisdiction.

2. The decision of Rankin, C.J, in Sadar Ali v. Doliluddin, A.I.R (15) 1928 Cal. 640 : (56 Cal. 512 F.B), is very much in point and as it has been approved by the Division Bench in Bhagwant Rao v. Damodhar, I.L.R (1938) Nag. 91 at p. 99 : (A.I.R (25) 1938 Nag. 112), I do not consider it proper, sitting as a single Judge, to differ from it. But the point is of great importance and will affect a very large number of second appeals, so I think it right that it should be heard at an early date by a Full Bench of three Judges. As at present advised I am inclined to doubt the soundness of Rankin, C.J's decision. The Division Bench of this Court which approves of it does not touch the particular point now before me, so the matter is an open one so far as I am concerned, but in view of the approval accorded to Rankin, C.J, I do not feel free to differ without a reference to a Full Bench.

3. As at present advised I consider that the-only vested right is the right of appeal. That is conferred by Cl. 11, Letters Patent, read with Sections 96 and 100 of the CPC. Those rights have not been touched by the amended rule. The appellant had a right to appeal to this Court and that, has not been affected, but in my judgment he had no vested right to have his appeal beard either by a particular Judge or by any specified number of Judges. How the appeal once lodged; is to be dealt with is, in my opinion, a question of procedure.

4. Clause 26, Letters Patent, deals with the powers of the Judges to deal with appeals before, the High Court as opposed to the jurisdiction of the Court conferred by cl. 11. The powers are subject to the Rules made under Section 108 of the Government of India Act, 1915. The present section in the Government of India Act, 1935, namely, S. 223, merely carries us back to S. 108 in the old Act, so that is all we have to consider. That gives the High Court the right to frame rules governing the powers of single Judges and Division Benches to exercise, among other things, the appellate jurisdiction of the High Court. In my opinion that does not touch the jurisdiction, of the High Court and is a procedural matter. The right of appeal to the Federal Court under Cl. 29 only arises if and when two Judges decides an appeal and not before.

5. Rankin, C.J goes so far as to say that, the right of a litigant arises when be institutes his suit. If that is correct the present alteration in our rules will not have effect for many years to come and in each case we will have to look, to the date of the institution of the suit to determine whether the appeal can be heard by one. Judge or two.

6. I refer the following question for the consideration of a Full Bench: Does an appellant who filed his second appeal before 27th May 1949 obtain a vested right to have the appeal heard by a Division Bench of two Judges with the result that the amendment to the rules of this Court effected on 27th May 1949 will not apply to him?

OPINION OF THE FULL BENCH

Bose, C.J:— I have read the opinion of: my learned brother Hidayatullah, J. and am driven by his remorseless logic to the conclusion that he is right and that the tenative opinion expressed by me in my order of reference is-wrong so far as appeals which my learned brother has called appeals as of right are concerned.

7. I confess I have wavered very considerably on this question but all the difficulties I had felt are solved by the division which my learned brother has made of appeals into those as of right, as of grace and at the discretion of a Court. I, therefore, agree with the answer which he has proposed.

8. I do not think it desirable to decide at this juncture whether an amendment to the amendment of our rules, which would make the original amendment retrospective and expressly applicable to pending litigation, will solve the difficulty in cases over Rs. 2,000 in value though that is what was done in Calcutta and Bombay after the decisions there. The point was not before us, it was not argued, and the amendment has not been made. But if and when the question arises the observations of Lord Wensleydale in The Attorney-General v. Sillem, (1864) 11 E.R 1200 at p. 1225 : (10 H.L.C 704) will doubtless be of great value.

Hidayatullah, J.:— This reference to a Full Bench has arisen because of an objection taken to the hearing of this appeal by a single Judge pursuant to the amendment of Rule 1(b), chapter 1, part I of the High Court Rules. The original rule read as follows:

“1. The following matters shall ordinarily be heard and disposed of by a Judge sitting alone:

(b) An appeal from an appellate decree of a District Court in which the value of the appeal or of the appeal and any cross-objection therein under Order 41, R. 22 of the CPC, does not exceed Rs. 2,000.”

9. By the amendment of 27th May 1949 the rule was renumbered as (1)(a), and all words after ‘District Court’ were deleted. The result was that if the unamended rule had stood this appeal, as also all second appeals above Rs. 2,000 in value, would have gone before two Judges. Now this appeal, as also all second appeals irrespective of the value of the claim involved, go before a Judge sitting alone.

10. In the case out of which this reference arises an objection was taken to the rule on the ground that the subject-matter of the appeal is now worth over a lac of rupees and that if a single Judge hears the appeal, the parties will lose, what was called ‘a vested right of appeal’ to the Federal Court by reason of the operation of Section 111 of the CPC. An affidavit has been sworn in support of the contention that the value of the claim in the appeal is now over a lac of rupees.

11. The learned Chief Justice who heard the objection referred the following question to a Full Bench:

“Does an appellant who filed his second appeal before 27th May 1949 obtain a vested right to have the appeal heard by a Division Bench of two Judges with the result that the amendment to the rules of this Court effected on 27th May 1949 will not apply to him”?

12. The question is a general one and makes no reference to the value of the claim involved. It is thus meant to cover all second appeals and not merely the case in which the reference was made, though at the stage of arguments before the Full Bench counsel were apt to forget its general import. I wish to draw pointed attention to this because as I shall show in the sequel all second appeals cannot be viewed in a uniform way, and much depends upon the value of the claim.

13. In general, I have no doubt, that the rights of litigants are determined not only by the Code but also by the Rules of the High Court. An appeal to the High Court is prescribed in Sections 96 and 100 of the CPC. Section 96 deals with appeals from original decrees while S. 100 deals with appeals from decrees passed in appeal. The Code, however, does not lay down how the jurisdiction in such appeals is to be exercised, that is to say, whether by one Judge or more. This is provided for in the Letters Patent of the High Court (cl. 26 of the Letters Patent of this Court). This clause says that any function directed to be performed by the High Court in the exercise of original or appellate jurisdiction may be performed by any Judge or by any Division Court constituted for the purpose in pursuance of Section 108 of the Government of India Act, 1915 (5 & 6 Geo. 5 Ch. 61).

14. The Rules of the High Court bearing on Benches are thus made by virtue of the powers granted by the Letters Patent read with Section 108 of the Government of India Act, 1915, the operation of which section is preserved by Section 223 of the Government of India Act, 1935. Section 108 reads:

“(1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges or by Division Courts constituted by two or more Judges of the High Court of the original and appellate jurisdiction vested in the Court.”

(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.”

15. The first sub-section deals with the exercise of the jurisdiction of the High Court. For this purpose rules have to be framed by the High Court. Sub-section (2) deals with the powers of the Chief Justice to designate Judges for cases or in other words with powers to settle the roster of the Court.

16. There can be no doubt that the powers to make rules are extensive and almost unfettered. The rules made by the High Court within the scope of the authority thus given, have the force of statutes: In re Kunhammad Haji, 46 Mad. 382 at p. 391 : A.I.R (10) 1923 Mad. 426 : 24 Cr. L.J 439) and In re. Philip N. Godinho, 58 Bom. 456 : (A.I.R (21) 1934 Bom. 70 F.B). Such rules are subject to the same principles of interpretation as the statute under which they are made: The Attorney General v. Sillem, (1864) 11 E.R 1200 at p. 1225 : (10 H.L.C 704). There is no provision in the Government of India Act 1915, or the Government of India Act, 1935, that the rules shall take effect as if enacted in the statute. This is of some importance only when rules have to be placed before Parliament. Where an enactment to this effect is contained in the statute the rules cannot be called in question, but where there is no such provision the Court can consider whether those who made the rule had the power to make it: see Lord Herschell L.C in Institute of Patent Agents v. Locltwood, 1894 A.C 347 at pp. 359, 360 : (63 L.J P.C 74).

17. That case was further explained in Minister of Health v. The King; Ex parte Yaffe, 1931 A.C 494 at pp. 502, 503 : (100 L.J K.B 306), in these words:

“Now, there is an obvious distinction between that case and this, because there Parliament itself was in control of the rules for forty days after they were passed, and could have annulled them if motion were made to that effect, whereas here there is no Parliamentary manner of dealing with the confirmation of the scheme by the Minister of Health. Yet, I do not think that distinction, obvious as it is, would avail to prevent the sanction given being an untouchable sanction. I think the real clue to the solution of the problem is to be found in the opinion of Harsohell L.C, who says this. Institute of Patent Agents v. Lockwood, 1894 A.C 347 at p. 360 : (63 L.J P.C 74).

‘No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment, and with regard to rules which are to be treated as if within the enactment. In that case, probably the enactment itself would be treated as the governing consideration and the rule as subordinate to it.’

What that comes to is this: The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If therefore the scheme, as made, conflicts with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be otherwise if the scheme had been, per se, embodied in a subsequent Act, for then the maxim to be applied would have been ‘posteriora derogant prioribus’.”

18. Thus it was that in 1864 regulations made as to the practice and procedure on the revenue side of the Exchequer were declared invalid: see Attorney-General v. Sillem, (1864) 11 E.R 1200 : (10 H.L.C 704), op. cit. sup. These questions do not arise because the Rules of the High Court, though statutory, can be challenged as not within the power of the High Court since no question of their being incorporated in the parent statute arises. I may mention that the rule was not challenged as ultra vires as such, but its applicability to pending appeals alone was questioned.

19. Now, except in a case for which there is a statutory provision for a hearing by a prescribed number of Judges (see for example Section 66-A(1) of the Income-tax Act (XI [11] of 1922); Section 24 of the Press Emergency Powers Act (XXIII [23] of 1931); Section 57(2) of the Stamp Act (I [1] of 1899); and Section 17 of the Divorce Act (IV [4] of 1869) etc.), the right to get a case heard and decided by two Judges is after all a creation of the rules the power to make rules includes the like power to vary, rescind and amend those rules: see Section 32(3) of the Interpretation Act, 1889 (52 & 53 Vict Ch. 63).

20. If no question of any vested right arose the amendment of the rules could not be objected to because all that the rules determine is the procedure to be followed. A party cannot be heard to say that his case should be beard by so many Judges any more than by such and such Judges. No litigant has a vested right in procedure and must take the rules in force as he finds them. In other words, the rules prescribing the number of Judges is really a matter of procedure, and all changes in the procedure of the Court made even during the pendency of an action must be taken to apply to that action unless such changes and alterations touch a substantive right.

21. This subject and the effect of rules made by High Courts has been considered on more than one occasion. In Har Prasad v. Bool Chand, I.L.R (1937) ALL 191 : (A.I.R (24) 1937 ALL. 19), Sulaiman, C.J and Allsop, J. observed as follows:

“The question referred to this Bench is whether the appellant can claim as of right that this appeal should be heard by a Bench of two Judges of this Court. The valuation of the appeal is Rs. 1,200 and at the time when it was filed it was cognizable by two Judges under the rules made by this Court. Recently the pecuniary jurisdiction of a single Judge has been raised up to Rs. 2,000, and the appeal is now cognizable by a single Judge.

‘The learned counsel for both the parties urge before up that there was a substantive right vested in the appellant to have the appeal heard by a Bench of two Judges only, and not by a single Judge. No doubt it is well established that the right of appeal is a substantive right and any rule taking away the right of appeal cannot have a retrospective effect so as to destroy that right. But under Section 100 of the CPC, the appellant had a right of appeal to the High Court from the decree passed in appeal by the Subordinate Judge on the grounds mentioned therein. The right was to appeal to the High Court and not to any particular Bunch of this Court. Under Section 108(1) of the Government of India Act, this High Court has made its own rules providing for the exercise of its appellate jurisdiction by one or more Judges or by Division Courts constituted of two or more Judges. This rule is exclusively for regulating the procedure in this Court as regards the constitution of Benches. We are unable to hold that the appellant has any vested right in such a constitution. If by an amendment of the rules the constitution of the Benches is altered the appeal still lies to the High Court, and the appellant cannot claim that the appeal must be heard by a Bench as constituted before the rule was amended. We accordingly hold that the appeal was cognizable by a single Judge of the this Court.”

22. Again, in Sadar Ali v. Dalimuddin, 55 Cal. 512 : (A.I.R (15) 1928 Cal 640 FB), Rankin, C.J, C.C Ghose, Suhrawady, B.B Ghoss and Page, JJ. observed as follows:

“Now, there is a certain parados in regarding the right to appeal within the High Court from the decision of a single Judge as a right ‘vested’ in the litigant at the date of the suit, since it is in no way certain that the case will ever be decided by a single Judge. Again, as the right of second appeal is the right given by Section 100 of the CPC to appeal ‘to the High Court’, it does not seem unreasonable that a litigant should take the internal arrangements of the High Court as he finds them when he gets there. If, under the Letters Patent, all second appeals had been required to come before two Judges and & new Letters Patent had provided that one Judge should be competent to exercise this jurisdiction, leaving the right of appeal to the High Court and from the High Court as before, it would have been difficult, in my opinion, to hold that any litigant had a right to a hearing before two Judges.”

23. Had the matter rested there my answer to the question would have been that an appellant had no vested right to have his appeal, under the given circumstances, heard by a Bench of two Judges. The question is, however, complicated because of the provisions of Sections 109 to 111 of the CPC, which provide for appeals to His Majesty in Council (now the Federal Court). The real difficulty is that under S. Ill of the Code there can be no appeal to His Majesty in Council (now the Federal Court) against judgments, etc., of a single Judge. Thus, whereas a litigant could appeal to His Majesty in Council (now the Federal Court) in suitable cases under Section 109 of the CPC (now read with Section 6 of the Federal Court (Enlargement of Jurisdiction) Act (1 [I] of 1948) and Section 5 of the Abolition of Privy Council Jurisdiction Act, 1949, (Constituent Assembly Act (v [5] of 1949)), the rule now made by the High Court completely precludes him from such an appeal: see Satyanarayana Varaprasada v. Venkata Bhashyakarulu, 46 Mad. 958 : (A.I.R (11) 1924 Mad. 399); Hanmant v. Shrinivas, A.I.R (18) 1931 Bom. 503 : (134 I.C 1164) and Md. Azim Khan v. Saadat Ali, A.I.R (26) 1939 P.C 122 : (14 Luck. 252). Under S. 111 of the Code the decision of the single Judge becomes final subject only to a right of appeal under Cl. 10. Letters Patent. It cannot be gainsaid that while the appeal under S. 109 under certain circumstances belongs as of right to the defeated party, an appeal under cl. 10, Letters Patent, depends on the discretion of the Judge deciding the case, and the further appeal to the King in Council (now the Federal Court) would be cut short if the single Judge refused his leave: see Parmeshwar Dayal v. Brindaban, A.I.R (23) 1936 Pat. 106 : (160 I.C 150) among others.

24. The contention of the appellant before us was two-fold. The first contention was that under the unamended rule he had a right as such to get his appeal heard by two Judges, which right, being valuable, could not be prejudiced by any subsequent amendment. I am quite clear that if this were the only question, the answer must be in the negative for the reasons already given by me. The second contention of the appellant was that by causing all second appeals to be beard by a Single Judge the right of appeal to His Majesty in Council (now the Federal Court) was affected and a substantive right like the right of appeal in pending cases could not be taken away. The learned counsel relied upon Sections 109, 110 and 111 of the CPC, and certain rulings to which reference will be made hereafter.

25. It is a well-established rule of interpretation of statutes that in general when the law is altered during the pendency of an action the substantive rights of the parties remain unaffected and are decided according to the law as it existed when the action was begun, unless the new amendment is made retrospective either expressly or impliedly. It is equally well settled that if the statute merely deals with procedure and does not affect the substantive rights of the parties it is held to apply prima facie to all actions pending as well as future.

26. Now, for the purpose of this rule of interpretation, an appeal is a continuation of the original action initiated by the filing of a plaint. As was observed by West, J. in Chinto Joshi v. Krishnaji Narayan, 3 Bom. 214 at p. 216

“the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by intrinsic unity.”

27. What pertains to procedure and what to the domain of substantive rights is at times difficult to say. The line of demarcation between the two is not always easy to draw. It is now settled authoritatively that a right to continue a duly instituted suit or a right of appeal are not mere matters of procedure but are substantive rights: see Venugopala Reddiar v. Krishnaswami Reddiar, 1943 F.C.R 39 : (A.I.R (30) 1943 F.C 24). The leading case on the subject that an appeal is a substantive right is Colonial Sugar Refining Co. v. Irving, (1905) A.C 369 : (74 L.J P.C 77) in which Lord Macnaghten laid down that to deprive a suitor in a pending action of an appeal to a superior tribunal, which belonged to him as of right, was a very different thing from regulating procedure. I shall examine the facts of this case later.

28. Lord Macnaghten's dictum was reaffirmed and applied in Delhi Cloth and General Mills Co. v. Income-tax Commissioner, Delhi, 9 Lah. 284 : (A.I.R (14) 1927 P.C 242). The case from Lahore was the converse of the earlier case. In that case the right of appeal to the Judicial Committee was claimed on the basis of an enactment in the Indian Income-tax Act subsequent to the decision of the High Court under which a new right of appeal was created. Their Lordships held that the right could not be claimed.

29. Similarly in 1928 when cl. 15, which is the same in the Letters Patent of the Calcutta, Madras and Bombay High Courts, was amended, the diotum of Lord Macnaghten was invoked to preserve in pending cases the right of appeal which a suitor had as of right before the amendment. The reasoning of Rankin, C.J who delivered the opinion of the Full Bench in Ram Charan v. Hamid Ali, 56 Cal. 507 : (A.I.R (15) 1928 Cal. 819 F.B), was adopted and followed by a Full Bench of the Madras High Court in In re Vesudeva Samiar, 52 Mad. 361 : (A.I.R (16) 1929 Mad. 381 S.B).

30. In Badrudin v. Sitaram Vinayak, 52 Bom. 753 : (A.I.R (15) 1928 Bom. 371), it was, however, held that the amendment governed even pending cases, and consequently in cases decided by a single Judge after the amendment had cases into force there was no right of appeal save with the leave of the Judge who gave the decision. According to the learned Judges the amended Cl. 15 when read with Cl. 2, Letters Patent of the Bombay High Court made it clear that the clause as amended was intended to be retrospective. One of the learned Judges (Mirza, J.) went on to say that a right of appeal from one tribunal to another tribunal which was differently constituted stood on a different footing from the right of appeal from the judgment of a tribunal where only one Judge constituted the tribunal to the same tribunal where two or more Judges constituted the tribunal. In the former case, according to the learned Judge, there was a substantive right, while in the latter no more than a regulation of the procedure of the same tribunal was involved. The learned Judges, however, neither referred to Sections 109 to 111 of the CPC, nor considered the effect of those sections on the right of further appeals from a decision of the High Court according as the decision was by one Judge or two Judges. This Bombay case is thus not conclusive, and to settle the controversy Cl. 15 was again amended to make it applicable to all decisions given by a Single Judge after a specified date.

31. Now the occasion for the exercise of the right of appeal does not arise till there is a decision by an inferior tribunal by which a party feels aggrieved. If the right also came into existence only on the decision of the case, then prior to the decision by the inferior Court, there would be no right of appeal, and any change in the rules could not but be regarded as not touching any right in existence while the action was still pending before the inferior tribunal. However, after the pronouncement of Lord Macnaghten it is no longer open to question that a right of appeal must be held to vest in a party on the commencement of his action in the Court of first instance. All appeals to which the party would be entitled as of right under the law in force at that time would be preserved to him and would not be prejudiced by any subsequent alterations of the law abolishing the appeal altogether or changing its venue unless the amending legislation so provided expressly or this result flowed by necessary implication from its terms. The decision in Colonial Sugar Refining Co. v. Irving, (1905) A.C 369 : (74 L.J P.C 77), has uniformly been understood to have laid down such a proposition: see Ramsingha v. Shankar Dayal, 50 ALL. 965 : (A.I.R (15) 1928 ALL. 427 S.B); Kirpa Singh v. Ajaipal Singh, 10 Lah. 165 : (A.I.R (15) 1928 Lah. 627 F.B); Sadar Ali v. Dalimuddin, 56 Cal. 512 : (A.I.R (15) 1928 Cal. 640 F.B) and In re Vasudeva Samiar, 52 Mad. 361 : (A.I.R (16) 1929 Mad. 381 S.B).

32. Now it is clear that if any right of appeal is involved, then by the joint operation of the unamended rule and S. 109 the right of appeal to the King-in-Council (now the Federal Court) would be saved. Such a right could not be impaired by the amendment in question, which by enabling a single Judge to decide the appeal interposes the bar created by S. 111 in the way of the appellant from invoking the appellate jurisdiction of the superior Court. The object of the amendment could not have been anything but to quicken the disposal of second appeals in this Court. But that reason would not justify the application of the amendment to pending cases in which an appeal as of right could be claimed when the expressions used therein do not warrant such application. Whether one is dealing with a provision enacted by the legislature or a rule made by Judges of the High Court, the intention can only be gathered from the words actually used. In my opinion the observations of Lord O'Hagan in Danford v. McAnulty, (1883) 8 A.C 456 at p. 460 : (52 L.J Q.B 652) are apposite. While construing two rules of the Supreme Court the Noble Lord said:

“… I think it right to say, in reference to the argument in the Court below and to some expressions of opinion on the part of the learned Judges there, that may view of the case does not depend at all upon a mare statement authoritative though it be, and true as it unquestionably is, that the intention of the framers of these rules was in accordance with the views contended for by the defendant cannot act upon intention, either in the case of a statute or in the case of a rule; we must have the intention carried into effect; and if the intention is stated to have been such that the terms either of the rule or of the statute contravene it or are in any way inconsistent with it, we cannot have regard to that intention; we can only say, either in the case of the judges or in the case of the Legislature, what the Judges or the Legislature have actually done. It is manifestly impossible to enter upon such an inquiry without confusion and serious risk of defeating the ends of justice. In the case of the judges, it may be more easy to find out exactly what they felt and wished than in the case of the Legislature, but still the difficulty would be enormous. We cannot act upon intention.”

33. What I have said so far merely settles that an appeal, if it is given as of right, cannot be touched by a change in the procedure of the High Court, that the amended rule is not retrospective either expressly or by necessary intendment and that if no substantive right be involved, the amended rule can be given effect to. It remains to see next what is the nature of the appeal to His Majesty in Council (now the Federal Court) as conferred by Sections 109 and 110 of the CPC, read with the Letters Patent of this Court. My conclusion is that while under cls. (a) and (b) of S. 109 a substantive right is involved, the same cannot be said of appeals under cl. (c) of that section. Learned counsel at the hearing did not seek to make any distinction between the first two clauses on the one hand and the last clause of Section 109 of the CPC, on the other. In my opinion there is a fundamental difference between them, and I give my seasons below.

34. Section 5 of the Abolition of Privy Council Jurisdiction Act 1949, (Constituent Assembly Act, V[5] 1949), provides:

“As from the appointed day, the Federal Court shall, in addition to the jurisdiction conferred on it by the Government of India Act 1935, (26 Geo. 5, c. 2) and the Federal Court (Enlargement of Jurisdiction) Act, 1947 (I [1] of 1948), but subject to the provisions of this section, have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council has, whether by virtue of His Majesty's prerogative or otherwise, immediately before he appointed day.”

35. In this opinion hereafter though I refer to His Majesty in Council, the reference will, as under the above section, be read as made to the Federal Court. I refer to His Majesty in Council, to avoid confusion which may arise when I quote from authorities relating to the prerogative of His Majesty.

36. Before the passing of the above Act India, in common with other British possessions, was subject to the prerogative of His Majesty of being the supreme tribunal of justice in the Empire. This jurisdiction was exercised in different ways in different parts of the Empire but the prerogative was always there unless it was surrendered or was curtailed. In some cases where the Statute of Westminster 1931 (22 Geo. 5, C.4), applies the power is given to the Dominions to abolish the prerogative of the Crown. Such a power was given to the Indian Legislature even before the present Dominion came into being, though in a limited form. We are not concerned with the legality of the Act abolishing the Privy Council jurisdiction. For our purpose the jurisdiction must be taken to be there, though the venue for its exercise is now different.

37. Now the jurisdiction was exercised in different ways. One way was to give the litigants a right of appeal in cases involving property of a certain value. The other was to grant special leave. The first was an appeal as of right (provided the requisite conditions were fulfilled) and the second was an appeal as of grace. In between the two there was a third category of cases in which the appeal was not as of right but was dependent upon the discretion of the Court against whose decision the litigant wished to appeal. Such cases were not required to con form to the rules regarding monetary value but had to be sufficiently important to be certified as fit for decision by His Majesty in Council.

38. The grant of the right of appeal to the King is ordinarily to be found in a Statute, Ordinance, Letters Patent, Charter, Order in Council or Proclamation. Sometimes Royal instructions were issued to the Governor. In these grants appeals to the King in Council were allowed to be brought if the subject-matter was above a certain value. In addition to this right of appeal by grant there was always the Royal Prerogative to grant special leave in any case, though the Privy Council has now settled the practice by specifying the kind of case in which special leave will be granted. There was yet a third category of possible appeal. Such appeals came before His Majesty not because they were of appealable value but at the discretion of the Court itself, if in the opinion of the Court the question involved in the appeal was one which, by reason of its general or public importance or otherwise, ought to be submitted to the King in Council for decision. A reference to the Colonial Appeal Rules will establish conclusively that this distinction obtained even in the colonies. See Bentwich Privy Council Practice, 3rd Edn page 10.

39. In India the right of appeal to the Privy Council was provided by the Letters Patent by which the High Courts were constituted after 1865. Sections 109 to 112 of the CPC, do no more than amplify and further specify those rights. In the Code of Civil Procedure also the appeals to the Privy Council receive the same treatment as in the colonies. There are provisions with regard to the appeal as of right depending on a monetary value to which is added the further condition that if the decree is of affirmance there must also be a substantial question of law. This latter provisio is in consonance with the practice of the Judicial Committee not to disturb a finding of fact. This rule is also applied even if the second Court has not taken precisely the same view the facts, though it is more rigorously applied where there is a concurrent finding. Next comes the discretion of the final Court to certify a case as fit for decision by His Majesty in Council and this is irrespective of the conditions attaching to the appeal as of right (cl. (o) of S. 109). Lastly comes the exercise of the prerogative to grant special leave in any case (S. 112).

40. Thus we find that Section 109(a) and (b) of the CPC, provide for appeals as of right, clause (c) (ibid) provides for appeal in the discretion of the High Court, and S. 112 (ibid) for the exercise of His Maiesty's prerogative. Referring to the Colonial Rules at p. 10 of Bentwich Privy Council Practice, 3rd Edn., we get:

“Rule 3 Subject to the provisions of these Rules an appeal shall lie—

(a) As of right etc.

(b) At the discretion of the Court etc.”

41. Rule 28 deals with the Royal Prerogative which is preserved. The distinction I am making in respect of the various clauses of Section 109 of the CPC, is nothing different.

42. The case in Colonial Sugar Refining Company v. Irving, (1905) A.C 369 : (74 L.J P.C 77), on which so much turns must be viewed with this distinction in mind. After all, as was observed in Quinn v. Leathern, 1901 A.C 495 : (70 L.J P.C 76) a case is only an authority for what it decides. The Colonial Sugar Refining Company's case : ((1905) A.C 369 : 74 L.J P.C 77), involved consideration of Section 39(2)(a) of the Judiciary Act, 1903. That section provided:

“Every decision of the Supreme Court of a State, or any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the. Queen in Council shall be final and conclusive except so far as an appeal may be brought to the High Court.”

43. There can be no doubt that by that section the appeal as of right in cases within the Federal jurisdiction to His Majesty's Privy Council was abolished: See Daily Telegraph Newspaper Co. v. Mclaughlin, 1904 A.C 779 : (78 L.J P.C 95) and Victorian Railway Cammrs v. Brown, 1906 A.C 381 : (75 L.J P.C 65). The question was whether this enactment affected pending cases. The Order in Council of Queensland dated 30th June 1860 promulgated by Her Majesty in Council provided that:

“Any person or persons may appeal to her Majesty, in her … Privy Council, from any final judgment, decree or order or sen ten be of any such Court … in case any each judgment, decree, order or sentence shall be given or pronounced for, or in respect of any sum or matter at issue above the amount of value of £ 500 sterling or in case such judgment, decree, order or sentence shall involve, directly or indirectly any claim, demand or question to or respecting property or any Civil right amounting to or of the value of £500 sterling etc.”

44. In the Judiciary Act nothing was said about pending cases. The Colonial Sugar Refining Company case : ((1905) A.C 369 : 74 L.J P.C 77), was then pending before the Full Court of the Supreme Court of Queensland. It would not be denied that a right had vested in the litigants to take an appeal in the case (which complied with the conditions prescribed) as of right, to His Majesty in Council it was, therefore, held that since an appeal is always a right and not a matter of procedure the appeal as of right could not be taken away unless the operation of the section was rendered retrospective either expressly or by necessary intendment. Lord Macnaghten mentions quite clearly that the appeal belonged to the parties as of right and that section was not retrospective either expressly or by necessary intendment.

45. There is no doubt that an appeal must always be treated as a right and not procedure. Though procedure does surround an appeal the central idea is a right. The nature of an appeal was described by Lord Westbury in Attorney, General v. H.J Sillem, 1864-10 H.L.C 704 at p. 724 : (11 E.R 1200), as ‘the right of entering a superior Court and invoking its aid, and interposition to redress an error of the Court below.’ To the same effect are the observations of Lord Macnaghten in the Colonial Sugar Refining Co.'s case : ((1905) A.C 369 : 74 L.J P.C 77) (supra).

46. Now the point of distinction to my mind lies in the nature of the appeal which was available in the Australian case. It was an appeal as of right not depending upon any grace. Such a right could only be taken away in a pending Case by the clearest of provisions to that end.

47. Unlike the appeal available under the Order in Council quoted by me, appeals under Section 109(c) of the CPC, depend not on any right of the party concerned but upon the discretion of the Court. This has been emphasised by their Lordships of the Privy Council in more than one case. In Banarsi Prasad v. Kashi Krishna Narain, 23 ALL. 227 : (28 I.A 11 P.C), Lord Hobhouse makes this distinction quite clearly This is what their Lordships observed at p. 231 of the report:

“It will be remembered that the argument on the merits of the case was broken off because the property at stake is not such as to give a right of appeal. The amount in question is little more than Rs. 4,000. When this was called to Mr. Ross' attention, he relied on the allegation that a substantial point of law is involved. Their Lordships have found on previous occasions that the existence of a point of law has been supposed to give a right of appeal in the ordinary course of procedure under the Code. That is a mistake. Section 596 of the Code requires that in order to give such a right there must be in dispute either directly or indirectly an amount of Rs. 10,000. If the decree affirms the Court below, another condition is affixed, viz., that the appeal must involve some substantial question of law. The presence of such a question does not give a right when the value is below the mark; the requirement of it restricts the right when the higher decree affirms the lower.

‘It is true that by Ss. 595 and 600 an appeal may be granted if the High Court certifies that the case is fit for appeal ‘otherwise,’ i.e when not meeting the conditions of S. 596. That is clearly intended to meet special cases; such for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance. To certify that a case is of that kind, though it is left entirely in the discretion of the Court, is a judicial process which could not be performed without special exercise of that discretion, evinced by the fitting certificate.’ (Underlining (here italicised) is by me).

48. In a later part of the judgment Lord Hobhouse says:

‘Mr. Ross says that the defendant was served with notice, and not appearing, must be taken to have assented. It is quite possible that owing to the defendant's non-appearance the defect in value was overlooked; but even if non-appearance could be taken to signify assent, it cannot give to the plaintiff a right of appeal which the Code does not allow, or sustain a certificate which from some oversight or other is obviously erroneous. Whether. If the learned Judges had been asked to say that notwithstanding its small value the case was a fit one for appeal to the Queen in Council, they would have said so, may wall be doubted, seeing that Mr. Ross, whose argument had advanced to some length before the point of value was observed, had not succeeded in impressing their Lordships with the importance of his legal objection to the decree. What is certain is that the learned Judges were not asked by the plaintiff to do, and have not done, anything of the kind and as it is of great importance not to allow litigants who have succeeded in the High Courts to be harassed by further appeals, when there is nothing at stake but amounts of money which the Indian Legislature has decided to be too small to give a right of appeal, their Lordships will humbly advice Her Majesty to dismiss this appeal”. (Underlining (here italicised) is by me).

49. To the same effect are further observations of Lord Buckmaster in Radhakrishna Ayyar v. Swaminatha Ayyar, (48 I.A 31 at p. 33 : A.I.R (8) 1921 P.C 25), where in explaining cl. (c) the noble Lord said that it contemplated

“oases in which it is imposaibls to define in money value the exact character of the dispute; there are questions, as for example, those relating to religious rites and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money. Sub-section (c) of Section 109 of the CPC contemplates that such a state of thing exists…”

50. We are not concerned with the conclusiveness or otherwise of the certificate of the Court, a matter commented upon in subequent case but with the nature of the right under different clauses of Section 109 of the CPC.

51. Now if any distinction is to be made between appeals as of right and appeals either as of grace or in the discretion of Courts, it is obvious that the only appeal which cannot be taken away except by the cleared piece of legislation is a appeal which vests in a party as of right. Every tenuous possibility of leave which might be granted is not to be confused with substantive right like an appeal which belongs to a litigant as of right. A difference must, therefore, be made between those cases in which the appeal is such an absolute fact that it can be said to vest in a litigant the moment his case is before the Court and those cases in which the litigant has no immediate right and the appeal can only be taken to the superior Court when the Court itself deciles that the case is fit for a decision of the King in Council. It may be that the litigant may have the right to draw the attention of the Court that his is such a case, but since the determination of this question is entirely in the discretion of the Court and the fitness of the case depends not on any monetary valuation, the right cannot be said to be substantive or to vest in the litigant when the case was filed.

52. An appeal is nothing more than a method of passing from one tribunal to another so that the errors of the inferior tribunal may be corrected by the superior tribunal. In this process we have on the one hand a class of cases in which the right is absolute, not depending in any way upon the discretion of the inferior Court (as for example in those cases where the subject-matter of the appeal is of a ??? value), and those cases in which the appeal can only be filed if the Court considers the case fife for decision by a superior tribunal I cannot but describe this right as contingent and not self-supporting. Whether the grace is exercised by the superior Court or the discretion is exercised by the inferior Court is not much to the purpose. The appeal is merely a contigency and in this matter cannot be distinguished from a Letters Patent appeal from one Judge to two Judges under Cl. 10 Letters Patent.

53. An appeal is merely a limitation of a Court's jurisdiction to pronounce a final decision on matters litigated. On the one hand that limitation is imposed ab extra where the decision is as of right appealable on the one (other?) hand the limitation arises from the volition of the Court itself, privilege having been granted to the Court to reserve cases for decision by a superior tribunal if the Court exercising its own discretion thinks fit. It is wrong to confuse the two aspects of the question and to thick that the exceptional privileges or discretion conceded to a Court is a right of the litigant. By a change in procedure (which is always retrospective) I do not consider that the right (much less a vested right) of the litigant is at all affected. The case then is governed by the rule that a statute dealing with procedure only, unless the contrary is expressed, applies to all actions, whether commenced before or after the passing of the statute. This rule has been affirmed in several leading cases. In Wright v. Hale, (1860) 6 H. & N. 227 : (30 L.J Ex. 40), Pollock C.B, stated:

“When an Act of Parliament alters the proceedings which are to prevail in the administration of justice, and there is no provision that it shall not apply to suits then pending, I think it does apply to such motions.”

54. The rule was again stated by Wild B. in the same case as follows:

“But where the enactment deals with procedure only unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act. That this is the principle appears from the cases that have been referred to on both sides.”

55. This rule was followed by A.L Smith L.J in the leading case of The Ydun, (1899) P. 236 at p. 245 : 68 L.J P. 101. See also Kimbrav v. Draper, (1868) 3 Q.B 160 at pp. 162, 163 : (37 L.J K.B 80); In re Joseph Suche & Co., (1875) 1 Ch. D. 48 : (45 L.J Ch. 12). In the leading case of James Gardner v. Lucas, 1878 3 A.C 582 at p. 603, Lord Blackburn stated the rule in the following words:

“I think it is perfectly settled that if the Legislature intended to frame a new procedure, that instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.”

56. It was argued that the litigants in such cases are debarred, by reason of Section 111 of the CPC, from even asking for leave as they would be met with the argument that the case was decided by a single Judge. Such litigants would be entitled to ask for leave to appeal under the Letter Patent. The appeal process does not fail them, but the continuity of the procedure which might lead to an exercise of further jurisdiction is altered. This is clearly applicable on the authorities cited by me.

57. It is not necessary to decide what was the motive underlying the enactment of Section 111 of the CPC. In Sadar Ali v. Dalimuddin, 56 Cal. 512 at p. 619 : (A.I.R (15) 1928 Cal. 640 (F.B), Rankin, C.J has suggested two reasons. He stated;

“The provisions of cl. (a) of S. Ill may have been motived originally by the existence of the right of Letters Patent appeals (cf. Sabhapathi Cheth v. Narayansam Chetti, 25 Mad. 555, at p. 558 : (11 M.L.J 346) or by the opinion that it is not reasonable in Indian cases that the Privy Council should be called upon to decide cases until a Bench has dealt with them.”

58. The intention appears to be that an appeal lies to the King in Council from a decision of the High Court as such and the judgment of a single Judge is not to be treated as a decision of that Court since it is appealable under the Letters Patent, though with the leave of the Court. It might well have been though that in matters which merit consideration by the King in Council leave would not ordinarily be refused under the Letters Patent. Whatever it may be, the fact remains that what we have to see is not whether Section 111 of the CPC bars the right but whether any vested right as such exists. No grievance can be made in cases below the appealable mark because in such cases there is no vested right of appeal. I would accordingly hold that in so far as appeals above the appealable limit are concerned the rule, though merely a rule of procedure, deprives them of a substantive right of appeal which vested in the litigants before the rule was amended, but that in cases below the appealable limit the rule touches no such right. My answer to the question propounded by my Lord the Chief Justice is:

“An appellant who filed his second appeal before 27-5-1949 obtained a vested right to have the appeal, heard by a Bench of two Judges, with the result that the amendment of the rules of this Court effected on 27-5-1949 will not apply to him provided his case satis, fies the condition of valuation prescribed in Section 109, clauses (a) and (b) read with Section 110 of the CPC. This would not apply to those appeals which are below the mark, and which are appealable only under cl. 3 of Section 109 of the CPC.”

Kaushalendra Rao, J.:— I agree that the question referred to the Full Bench be answered as proposed by my brother Hidayatullah, J.

59. Answer accordingly.