Full Judgment Text
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PETITIONER:
GANPAT RAI HIRALAL AND ANOTHER
Vs.
RESPONDENT:
AGGARWAL CHAMBER OF COMMERCE LTD.MURARI LAL HARI RAMV.MARWAR
DATE OF JUDGMENT:
24/10/1952
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.
CITATION:
1952 AIR 409 1953 SCR 752
CITATOR INFO :
E 1957 SC 540 (21)
R 1963 SC 221 (8)
ACT:
Pepsu Ordinance (X of 2005), ss. 52,116-Patiala States Judi-
cature Farman, 1999--Appeal from order of single Judge-
Certificate of fitness-When necessary-Order made before
Ordinance came into force-Petition for amendment thereafter-
Appeal from order dismissing petition-Necessity of
certificate-Right of appeal--Vested right-Effect of change
of law.
HEADNOTE:
Section 116 of the Pepsu Ordinance X of 2005 (1948-1949)
is a transitory regulation providing for a change over of
proceedings ’from one set of courts in the covenanting State
to others of like status in the Union, and for their
continuance etc. in the latter courts. It does not mean
that the proceedings must be treated as having freshly
commenced. What is contemplated in the latter part of the
section is a notional commencement, and the section means
that all rights which arose or are likely to arise in future
shall remain intact not with standing the new set Lip and
that they would be dealt with by the Union courts in place
of the courts of the covenanting State. There is nothing in
the section to justify the view that any taking away of a
vested right of appeal retrospectively was intended.
Under the Patiala States Judicature Farman of 1999 a
certificate was necessary for an appeal to a Division Bench
from an order of a single Judge of the Patiala High Court
only in respect of judgments and orders made in the exercise
of civil appellate jurisdiction. Under the Pepsu Ordinance
X of 2005 (1948-49) a certificate was necessary in all
cases. In Appeal No. 152 an application made on 2nd
February, 1950, for amendment of an order made by a
Liquidation Judge in 1946 was dismissed and an appeal from
the order of dismissal to a Division Bench was dismissed on
1st May, 1950, for want of a certificate. In appeals Nos.
167 and 167A, the payment orders were made on the 18th
January, 1949, and appeals from those orders were dismissed
on 3rd March, 1949, for want of a certificate:
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Held, (i) that as a petition for amendment was not a
continuation of the earlier proceedings but was in the
nature of an
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independent proceeding though connected with the order
sought to be amended, it was governed by the law prevailing
on its date, viz., the Pepsu Ordinance of 2005 under which a
certificate was, necessary, and in Appeal No. 152 the
dismissal of the appeal to the Division Bench for want of a
certificate was right;
(ii)that with regard to Appeals Nos. 167 and 167-A, as the
law in force on the relevant dates was the Patiala States
Judicature Farman of 1999 the appellants had a right to
appeal from the payment order without a certificate; this
vested right could not be taken away by a subsequent change
in the law unless the later enactment expressly or by
necessary implication was retrospective in operation and
deprived them of such a right, that there was nothing in s.
116 of the Ordinance to show that it was intended to have
retrospective effect and the order of the High Court
dismissing the appeals as incompetent was, therefore,
erroneous.
Colonial Sugar Refining Company v. Irving [1905] A.C. 369
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 152, 167
and 167-A of 1951. Appeal from the Judgments dated April
25, and May 1, 1950, of the High Court of Judicature for
Patiala and East Punjab States Union at Patiala (Teja Singh
C. J. and Chopra J.) in T. P. A. R. I. A. O. No. 34 of 1950
and Civil Appeals Nos. 493/494 of Samwat 2005.
Rang Behari Lal (Ram Nivas Sanghi, with him) for the
appellants in Civil Appeals Nos. 167 and 167-A.
Udai Bhan Chaudhuri for the appellant in Civil Appeal No.
152.
Lachhman Das Kaushal for the respondent in Civil Appeals
Nos. 167 and 167-A.
Ram Nivas Sanghi for the respondent in Civil Appeal No.
152.
1952. October 24. The Judgment of the Court was
delivered by
CHANDRASEKHARA AIYAR J.-These appeals are connected and
raise a common question of law. They come before us on
special leave granted by the Pepsu High Court at Patiala
under sub-clause (e) of clause (1) of article 133 of the
Constitution,
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The facts in Civil Appeal No. 152 of 1951 are different from
those in the other two appeals, and the consequences are
different also.
The proceedings arise out of the liquidation of two
companies called the Marwari Chamber of Commerce Ltd., (in
Civil Appeal No. 152 of 1951) and the Aggarwal Chamber of
Commerce Ltd., (in the other two appeals). The Official
Liquidator settled the list of contributories, and after
various steps taken before the Liquidation Judge of the High
Court by way of objection on grounds of law as well as on
merits, there were payment orders on 4th June, 1946, in
Civil Appeal No. 152 of 1951 and on 18th January, 1949, in
the latter two appeals.
The correctness and the validity of the payment order in
Civil Appeal No. 152 of 1951 was challenged in appeals taken
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to the High Court by the Official Liquidator and the
contributory. The order of the Liquidation Judge was
modified in favour of the Liquidator, and as against a sum
of Rs. 4,762-13-3 ordered to be paid, there was an order for
the payment of Rs. 24,005-7-3. On further appeal by the
contributory to the Judicial Committee, it was held that the
appeal to the Division Bench was barred by time, and
consequently the judgment of the Bench was set aside, and
that of the Liquidation Judge restored. This was on 6th
December, 1949.
In the other two appeals, an application for removal of the
name of the contributory was granted by the Liquidation
Judge, but on appeal a Division Bench of the High Court
reversed this order. On further appeal taken by the
company, the Judicial Committee, Patiala, remanded the case
for retrial, and the Liquidation Judge made an order for
payment of Rs. 8,191-0-9 on 18th January, 1949, as
aforesaid.
On 2nd February, 1950, the firm Murari Lal-Hari Ram,
appellant in Civil Appeal No. 152 of 1951, filed an
application under section 152, Civil Procedure Code, for
amendment of the order of the Liquidation judge, Kartar
Singh J., alleging that there was a
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clerical or arithmetical error arising from an accidental
slip or omission in that a sum of Rs. 24,005-7-3 was taken
as due by the firm instead of the correct figure of Rs.
21,805-7-3. This application was dismissed by the learned
Judge on 16th March, 1950. The firm applied to him for a
certificate for leave to appeal, but this again was
dismissed. An appeal was preferred from the order
dismissing the amendment petition, but it was thrown out on
the ground of want of a certificate from the Single Judge.
This order is dated 1st May, 1950, and is couched in these,
terms " We have recently held in Ganpat Rai Hira Lal v.
Aggarwal Chamber of Commerce, Ltd., L.P.A. Nos. 493 and 494
of Samvat 2005 (Pepsu) that no appeal lies from an order of
a Single Bench to a Division Bench without a certificate by
the Single Judge that the case is a fit one for further
appeal. In this case it is admitted that the appellants
made an application for a certificate to the Single Bench,
from whose decision he is appealing, but the same was
refused. The appeal is. therefore not competent and is
dismissed in limine."
The reference in the order to the case of Ganpat Rai Hira
Lal v. Aggarwal Chamber of Commerce Ltd., L.P. A. Nos. 493
and 494 of Samvat 2005 (Pepsu) is to the order made by the
High Court in the connected matter which has given rise to
the two Appeals Nos. 167 and 167-A of 1951. There, an
appeal was lodged from the payment order of the Liquidation
Judge, but it was dismissed on the same ground, namely, want
of a certificate from the Single Judge.
In Civil Appeal No. 152 of 1951, the argument for the
appellant is that no certificate front the Single Judge is
necessary, as the matter is governed not by Ordinance X of
2005 of the Patiala State but by the Patiala States
Judicature Farman Shahi, 1999 Bikarmi, under which no
certificate is necessary. It is true that under section 44
of the earlier Farman a certificate that the case is a fit
one for appeal is required only if the judgment, decree, or
order sought to be appealed is wade in the exercise of civil
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appellate jurisdiction. It is, however, clear that we are
not governed by this provision. The amendment application
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was made on 2nd February, 1950, as stated already. No
appeal is provided under the Civil Procedure Code from an
order amending or refusing to amend a judgment, decree or
order, though an appeal would lie from the amended decree or
order. There is no warrant for the view that the amendment
petition is a continuation of the suit or proceedings
therein. It is in the nature of an independent proceeding,
though connected with the order of which amendment is
sought. Such a proceeding is governed by the law prevailing
on its date, which admittedly is Pepsu. Ordinance X of
2005, and which provides in section 52 for a certificate.
The section is in the following terms:
" Subject to any other provision of law, an appeal shall
lie to the High Court from a judgment, decree or order of
one Judge of the High Court and shall be heard by a Bench
consisting of two Judges of the High Court: Provided that no
such appeal shall lie to the High Court unless the Judge who
decides the case or in his absence the Chief Justice
certifies that the case is a fit one for appeal...."
So far as the appellant firm is concerned, there is no
question of any right of appeal vested in it which is sought
to be taken away by giving retrospective effect to the
Ordinance which came into force in August, 1948. The order
of the High Court holding that no appeal lies from an order
of a single Judge without a certificate by him that the case
is a fit one for appeal, is, in our opinion, right.
In the other two Appeals Nos. 167 and 167 A, of 1951,
different considerations come into play. The payment order
of the Liquidation Judge was on 18th January, 1949, and the
appeal was preferred on 19th February, 1949. In the
meantime, as there was some doubt on the question, the
appellants took the precaution of applying to the Judge for
a certificate, but this was dismissed on 3rd March, 1949.
On the relevant dates, the Patiala States Judicature Farman,
1999, was in force, and the appellants hood a, right of
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appeal from the payment order without a certificates They
could not be deprived of this right by a subsequent change
in the law, unless the later enactment provides expressly or
by necessary implication for retrospective effect being
given. The learned Judges of the High Court conceded this
in their order, but they thought ’that section 116 of
Ordinance X of 2005 (1948-49) contained an express provision
to the contrary. The section is in these terms:
Notwithstanding anything contained in this Ordinance, all
suits, appeals, revisions, applications, reviews, executions
and other proceedings, or any of them, whether civil or
criminal, pending in the Courts and before judicial
authorities in any Covenanting State shall be continued and
concluded respectively in Courts or before judicial
authorities of the like status in the Union ; and the Courts
or authorities in the Union shall have the same jurisdiction
in respect, of all such suits, appeals, revisions, reviews,
executions, applications and other proceedings, or any of
them, as if the same had been duly commenced and continued
in such Courts or before such authorities."
It is fairly obvious that this is a transitory regula-
tion, providing for a change over of proceedings from one
set of Courts in the Covenanting State to others of like
status in the Union and for their continuance etc. in the
latter Courts. It does not say that the proceedings must be
treated as having freshly commenced. What is contemplated
in the latter part of the section is a notional
commencement, if such a term could be used. The section
obviously means that all rights which arose or are likely to
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arise in the future shall remain intact notwithstanding the
new set-up, and that they would be dealt with by the Union
Courts in place of the Courts of the Covenanting State.
There is nothing in the section to justify the view that any
taking away of a vested right of appeal retrospectively was
intended. The decision in Colonial Sugar Refining Co. v.
Irving(1) clearly applies to the facts, and the order of the
High Court that
(1) [1905] A.C. 369.
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the appeals are not competent is, in our opinion, erroneous.
The result is that Appeal No. 152 of 1951 is dismissed
with costs throughout, while Appeals Nos. 167 and 167A of
1951 are allowed with costs throughout.
Appeal No. 125 dismissed.
Appeals Nos. 167 and 167A allowed.
Agents for the appellants in Appeals Nos. 167 and 167A:
Mohan Behari Lal.
Agent for the appellant in Appeal No. 152: Kundan Lal Mehta.
Agent for respondents in Appeals Nos. 167 and 167A: Naunit
Lal.
Agent for respondent in Appeal No. 152: Mohan Behari Lal.