Appeal No 1456 of1966
Appeal from the judgment and order dated April 6 1964 of the Gujarat High Court in Letters Patent Appeal No 8 of 1960
DU Shah PC Bhartari and JB Dadachanji for the  appellants
SK Dholakis and Vineet Kumar for respondents Nos 1 a to 1eand g
The Judgment of the Court was delivered by Shah J
The facts which give rise to these appeal are few and simple
The appellant commenced on May 3 1951 an action in the Court of the Assistant Judge Morvi in the former Part B  State of Saurashtra for a decree for Rs 93875 against one L Angha Nathu Jamal and respondents 2  3 in this appeal
The Trial Court decreed the suit on October 17 1955
An appeal was filed against the decree in the High Court of Saurashtra at Rajkot
On November 1 1956 the High Court of Saurashtra was abolished and the proceedings pending in that Court stood  transferred to the High Court of Bombay
On February 21 436 1958 Vyas J of the High Court of Bombay allowed the appeal
Against that order an appeal under C1
15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas J certifying that the case was fit for appeal to a Division Bench of the High Court
On May 1 1960 under the Bombay Reorganisation Act 1960 the appeal stood transferred to the High Court of Gujarat
The High Court of Gujarat held that the appeal was incompetent in the absence of an order under section 22A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench
With certificate granted by the High Court of Gujarat this appeal has been preferred
The Rulers of Indian States in Kathiawar agreed to unite and integrate their territories in one State to be styled the United State of Saurashtra with a common executive legislature and judiciary
By Ordinance 1 of 1948 the administration of the covenanting States was taken over by the Rajpramukh
The Rajpramukh issued in exercise of power reserved to him by article 9 el
3 of the Covenant Ordinance 2 of 1948 setting up with effect from February 29 1948 a High Court of Judicature for the State of Saurashtra
The expression High Court was defined in section 3c as meaning the High Court established and constituted by this Ordinance and functioning as the High Court of the Saurashtra State
By section 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dispose of such appeals revision and other cases civil or criminal as it may be empowered to do under the Ordinance or any enactment in force in the State
By section 22 the High Court was also to be a Court of reference with power to hear revise and determine all eases referred to it
By Ordinance 5 of 1950 section 22A was added it vas provided thereby  1  Except as otherwise provided by any enactment for the time being in force an appeal from any original decree or from any
order against which an appeal is permitted by any law for the time being in force or from any order under Article 226 of the Constitution of India made by a single Judge of the High Court shall lie to a Bench consisting of two other Judges of the High Court
2 An appeal shall lie from a judgment of one Judge of the High Court in respect of a decree or order made in exercise of Appellate Jurisdiction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree or order certifies that the case is a fit one for appeal 437 Under the Constitution of India the territory of the United State of Saurashtra was formed into a Part B  State of Saurashtra
By the the territory of the State of Saurashtra merged into the State of Bombay
By section 49 of the States Reorganization Act 1956 it was enacted that the High Court exercising immediately before the appointed day jurisdiction in relation to the existing State of Bombay shall as from the appointed day be deemed to be the High Court for the new State of Bombay
By section 501 as from the appointed day the High Courts of all the existing Part B States with certain exceptions not material were to cease to function and were abolished
By section 52 was provided The High Court for a new State shall have in respect of any part of the territories included in that new State all such original appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner s Court for an existing State
By section 54 it was provided Subject to the provisions of this Part the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall with the necessary modifications apply in relation to the High Court for a new State and accordingly the High Court for the new State shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court for the corresponding State Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall until varied or revoked by rules or orders made by the High Court for a new State apply with the necessary modifications in relation to practice and procedure in the High Court for the new State as if made by that Court
Section 593 provided that all proceedings pending in the High Court of Saurashtra or in the Court of the Judicial Commissioner for Kutch immediately before the appointed day shall stand transferred to the High Court of Bombay
By section 119 it was provided The provisions of Part II shall not be deemed to have effected any change in the territories to which any L2Sup CI70 6 438 law in force immediately before the appointed day extends or applies and territorial references in any such law to an existing State shall until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day Section 127 provided The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law
 In exercise of the power conferred upon the Central Government by section 120 of the  the Saurashtra Adaptation of Laws on Union Subjects Order 1957 was promulgated by the Central Govt
By cl 3 of the order it was provided that Saurashtra Ordinance 2 of 1948 shall stand repealed with effect from November 1 1956
The High Court of Bombay for the new State added rr
252 A and 252 B to the Rules of the High Court of Judicature at Bombay Appellate Side 1950
By r 252 A it was provided Rules and orders relating to
practice and procedure in the High Court in force immediately prior to the appointed day in the High Court of Bombay shall subject to
modifications made from time to time thereto apply to the practice and procedure in the High Court
 Rule 252 B provided Rules and orders relating to practice and procedure in the High Court framed by the High Courts of Nagpur Hyderabad and Saurashtra and Judicial Commissioner s Court Kutch shall stand abrogated as from the 1st November 1956 in the areas of the new State of Bombay which before the 1st November 1956 were parts of the States of Madhya Pradesh Hyderabad Saurashtra and Kutch The High Court of Gujarat held that the appeal filed by the respondents in the High Court of Saurashtra against the judgment of the Assistant Judge was and continued to remain subject to the provisions of section 22A of Saurashtra Ordinance 2 of 1948 and an appeal could lie against the decision of Vyas J only if he certified that the case was fit for appeal to a Division Bench
Clause 15 of the Letters Patent of the Bombay High Court provided And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a 439 decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of India ACt and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of India Act made on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the same is a fit one for appeal but  right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us Our Heirs or Succes SOTS  By cl 15 of the Letters Patent a judgment in an appeal from a civil suit by a single Judge of the High Court of Bombay is subject to appeal to a Division Bench except when the order is made in exercise of the revisional jurisdiction of the Court or in second appeal or in exercise of criminal jurisdiction or in exercise of power of superintendence under section 107 of the Government of India Act 1935 article 227 of the Constitution
Vyas J decided the appeal sitting as a Judge of the High Court of Bombay
Prima facie his judgment delivered in a first appeal from a judgment of the subordinate court was subject to appeal 0 a Division Bench of the High Court of Bombay
There was clearly an inconsistency between section 22A of the Saurashtra Ordinance 2 of 1948 and cl 15 of the Letters Patent of the High Court of Bombay
By virtue of section 22A2 an appeal lay to a Division Bench of the Saurashtra High Court from a judgment of one Judge in respect of a decree or order made in exercise of Appellate Jurisdiction when the Judge who made the decree or order certified that the case is a fit one
for appeal
The Legislature made no distinction between a first appeal a second appeal an appeal from order land an application in exercise of revisional jurisdiction
But an appeal under cl 15 of the 440 Letters Patent of the High Court of Bombay in be appeal from filed without the judgment of the Court of First Instance could a certificate of the Judge hearing the appeal
The right to appeal from a decree or order is a substantive right
As a corollary thereto the right to maintain a decree of a Court without interference by a superior Court and subject only to the limitation therein is also a vested right and may be taken away by express enactment or clear implication of the amending statute
In Colonial Sugar Refining Company vs Irvingx the Judicial Committee held that a provision which deprives a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right does not regulate procedure
The Australian Commonwealth Judiciary Act 1903 came into force on August 25 1903
Against the judgment of the Supreme Court of Queens land in an action commenced on Act
25 1902 an application was made for leave to appeal to the Judicial Committee and leave was granted on September 4 1903
At the hearing of the appeal by the Judicial Committee the respondents applied that the appeal from the judgment of the Supreme Court of Queensland be dismissed on the ground that the power of the Court below to give leave to appeal stood abrogated by section 39 of the Australian Commonwealth Judiciary Act 1903
The application was rejected by the Judicial Committee
Lord Macnaghten observed As regards the general principles applicable to the case there was no controversy
On the one hand it was not disputed that if the matter in question be a matter of procedure only the petition to dismiss is well founded
On the other hand if it be more than a matter of procedure if it touches a right in existence at the passing of the Judiciary Act it was conceded that in accordance with a long line of authorities from the time of Lord Coke to the present day the appellants the Sugar Co would be entitled to succeed
The Judiciary Act is not retrospective by express enactment or by necessary intendment
And therefore the only question is was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act or was it a mere matter of procedure  It seems to their Lordships that the question does not admit of doubt
To deprive
a sui tor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure
1 441 In Garikapatti Veeraya vs
N Subbiah ChoudhurY1 this Court accepted the principle in Colonial Sugar Refining Company s case2
In the absence of any provision to the contrary there fore a right attached to the action when it was commenced in 1951 that an appeal against the decision of a single Judge of the High Court of Saurashtra shall lie only if the Judge deciding the case certified the case to be a fit one for appeal
But the Saurashtra High Court was abolished from November 1 1956 and the jurisdiction of the Saurashtra High Court was conferred upon the Bombay High Court
The case was tried by Vyas J not as a Judge of the Saurashtra High Court but as a Judge of the High Court of Bombay
In terms the restriction placed by section 22A applies to a judgment of one of the Judges of the High Court of Saurashtra it does not apply to a judgment of a Judge of the High Court of Bombay
Once the Saurashtra Ordinance 2 of 1948 was repealed and the jurisdiction to try the appeal was conferred upon the High  Court of Bombay the right of appeal exercisable by the parties to the litigation decided by the High Court of Bombay was governed by the Letters Patent of that court had not by section 22A of the Saurashtra Ordinance 2 of 1948
Granting that the incident prescribed by section 22A continued to attach to the action in terms section 22A of the Saurashtra Ordinance could not operate to restrict a right of appeal exercisable by cl 15 of the Letters Patent governing the judgments of the Judges of the High Court of Bombay
The expression Judge of the High Court in section 22A of the ordinance for the  purpose of giving effect to the rule in Colonial Sugar Refining Company s case2 cannot be read as meaning a Judge of the High Court of Bombay
By the clearest implication of the repeal by the Saurashtra Adaptation of Laws on Union subjects Order 1957 promulgated by the Central Government and by the application of cl 15 of the Letters Patent of the Bombay High Court the judgment of Vyas J was subject to appeal to a Division Bench without an order of the Learned judge certifying the case to be fit for appeal
In support of his submission counsel for the respondents relied upon the terms of section 52 of the 
But that section only confers upon the High Court of Bombay after November 1 1956 the original appellate and other jurisdiction which was exercisable by the High Court of Saurashtra immediately prior to November 1 1956 in respect of the territories within the State of Saurashtra
The section does not incorporate either expressly or by implication the limitations prescribed by section 22A2 of Saurashtra Ordinance 2 of 1948 into the Letters Patent of the High Court of Bombay
The jurisdiction original appellate and other which the High Court of Saurashtra could exercise prior to November 1 1956 survived to the High Court 1  21905 AC360
442 of Bombay in respect of the territories of the State of Saurashtra and the appeal filed by the respondent before the High Court of Saurashtra was triable in the exercise of the appellate jurisdiction of the High Court of Bombay after the case stood transferred to that Court by virtue of sub section
3 of section 59 of the States Reorganization Act 1956
Vyas J functioned as a Judge of the High Court of Bombay and his judgments in first appeals were in the absence of an express provision to the contrary subject to appeal under cl 15 of the Letters Patent to a Division Bench without a certificate
The High Court of Gujarat was right in holding that in respect of the areas of the former Saurashtra State the High Court Bombay acquired the same jurisdiction which the High Court of Saurashtra possessed
That however does not mean that the jurisdiction was to be regulated with reference to the law which was in force on the appointed day ie November 1 1956
Section 52 of the preserved the original appellate and other jurisdiction as under the law in force immediately before the appointed day exercisable in respect of the territories within the State of Saurashtra
Unless in the exercise that jurisdiction any restriction under the law then in force was by express provision or by clear implication preserved the provisions of cl 15 of the Letters Patent must apply
It is necessary to recall the provisions of section 57 of the  which provide that the law in force immediately before the appointed day relating to the powers of the Chief Justice single Judges and division courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of the powers shall with the necessary modification apply in relation to the High Court for a new State
Immediately before November 1 1956 against the judgment of a single Judge of the High Court of Bombay exercising power in a first appeal an appeal lay to a Division Bench without a certificate
The power of a Division Bench to entertain an appeal continued to remain exercisable by the Judges of the Bombay High Court when dealing with cases transferred under section 593 to the Bombay High Court from the Saurashtra High Court
In terms section 57 provides that powers of the Division Bench of the High Court for the corresponding State ie the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before the appointed day in the State of Bombay
A Division Bench of the High Court of BOmbay was competent to entertain an appeal against the judgment of a single Judge deciding a first appeal from the decision of a subordinate court without a certificate of the Judge deciding the appeal
443 The High Court of Gujarat have made a distinction between power and jurisdiction and they have held that when section 52 of the  enacts that the appellate jurisdiction of the High Court of Bombay for the new State of Bombay shall in relation to the Saurashtra area be the same as the jurisdiction which the Saurashtra High Court possessed it is meant that the High Court of Bombay has the same jurisdiction which the High Court of Saurashtra originally had and in exercise of that jurisdiction is subject to the same limitations which the High Court of Saurashtra was subject
We are unable to agree with that view
Section 52 of the States Reorganization Act 1956 does not say so and section 57 of that Act provides to the contrary
The High Court of Gujarat was also of the view that section 52 of the crystalizes the law only with respect to the territorial jurisdiction of each of the areas comprised in the High Court of Bombay and if the Legislature extended the jurisdiction of the High Court of Bombay and also retained the jurisdiction which the abolished High Court possessed the result would be odd and conflicting there being conflict of jurisdiction
But that in our judgment is a ground for holding that the jurisdiction of the Bombay High Court superseded in case of conflict the restrictions on the exercise of jurisdiction by the original High Court qua the Saurashtra territory and not that the jurisdiction of the High Court of Bombay was because of some unexpressed limitation restricted
The High Court of Gujarat recognised that the conclusion to which they had reached revealed a defect in the administration of justice
They observed The Legislature may have had a good reason for preserving in tact the old jurisdiction of the Saurashtra High Court in regard to pending cases
However our conclusion affects cases instituted after the Reorganisation Act came into force
In our judgment there is no reason why the litigants from the Saurashtra and Kutch areas should now be treated on a different footing from the litigants in the old Bombay area
In our judgment the rights of appeal of litigants in all the areas should now be placed on the same footing
live would recommend to the authorities concerned to examine this question and if so advised to undertake the necessary legislation so as to confer the same rights of appeal to the litigants from the Saurashtra  Kutch areas as are given to the litigants from the rest of the State of Gujarat
 444 In our view the conclusion that the restriction on the old jurisdiction of the Saurashtra High Court in regard to
pending cases was preserved by section 52 is erroneous
_ The does not purport to
preserve the restrictions upon the exercise of jurisdiction and no implication arises from the use of the expression original appellate and other jurisdiction as under the law in force immediately before the appointed day that the limitations upon the exercise of the jurisdiction which were existing prior to November 1 1956 notwithstanding the provisions of section 57 of the were preserved
The order passed by the High Court of Gujarat is set aside and the case is remanded to the High Court to be re entered under the original number and to be heard and disposed of according to law
Costs wilt be costs in the High Court
VPS Appeal allowed and case remanded


Summary:
Under section 22A2 of the Saurashtra Ordinance No 2 of 1948 an appeal lay to a Division Bench of the Saurashtra High Court Tom a judgment of a single Judge of that High Court in the exercise of its appellate jurisdiction if the Judge certified that the case was a fit one for appeal
The  merged the Part B  State of Saurashtra into the State of Bombay abolished the High Court of Saurashtra as from November 1 1956 and transferred the proceedings pending before the High Court of Saurashtra to the High Court of Bombay
Section 52 of the Act conferred upon the High Court of Bombay after November 1 1956 the original appellate and other jurisdiction which was exercised by the High Court of Saurashtra immediately prior to that date in respect of the territories in the State of Saurashtra
The Saurashtra Ordinance No 2 of 1948 was repealed with effect from November 1 1956
by the Saurashtra Adaptation of Laws on Union Subjects Order 1957
and the Rules and orders relating to practice and procedure framed by the High Court of Saurashtra were abrogated as from November 1 1956 by rules of the High Court of Bombay made under section 54 of the State Reorganisation Act
The effect of section 57 of the is that the powers of a Division Bench of the High Court for the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before November 1 1956 in the State of Bombay
Clause 15 of the Letters Patent of the High Court of Bombay which was law in force immediately before November 1
1956 in the State of Bombay provides that an appeal from the judgment of a single Judge of the Bombay High Court in a first appeal from a judgment of the Subordinate Court could be filed without a certificate of the Judge hearing the first appeal
Clause 15 of the Letters Patent of the Bombay High Court applied also to the Gujarat High Court which was established as a result of the Bombay Reoganisation Act
A first appeal against a decree of a subordinate court in Saurashtra pending in the Saurashtra High Court on November 1 1956 was transferred to the High Court of Bombay and disposed of by a single Judge of the Bombay High Court An appeal to the Division Bench under CI
15 of the Letters Patent of the High Court of Bombay was transferred to the Gujarat High Court after its establishment but the Gujarat High Court held that the appeal was incompetent under section 22A of the Saurashtra Ordinance No 2 of 1948 without a certificate from the single Judge
435 In appeal to this Court HELD 1 It was only in the absence of any provision to the contrary that a right attached to the action when it was commenced in the subordinate court in Saurashtra that an appeal against the decision of the single Judge of the High Court of Saurashtra in appeal shall lie only if the single
judge certified that it was a fit case for appeal to a Division Bench
Garikapatti Veerayya vs
N Subbiah Choudhury   referred to
443 A B
2 But from November 1 1956 the Saurashtra High Court was abolished the Saurashtra Ordinance No 2 of 1948 was repealed and the jurisdiction of the High Court of Saurashtra was conferred upon the Bombay High Court
Therefore the single Judge of the High Court who heard the first appeal heard it not as a Judge of the Saurashtra High Court but as a Judge of the Bombay Court
443 B C 3 Section52 of the does not mean that the jurisdiction conferred upon the Bombay High Court in respect of the territories within the State of Saurashtra was to be regulated with reference to the law which was in force on November 1 1956 in Saurashtra
Therefore it does not incorporate either expressly or by implication the limitations prescribed by section 22A2 of the Saurashtra Ordinance into the Letters Patent of the High Court
443 G H 444 C D 4 Since the restriction placed by section 22A of the Ordinance applied only to a judgment of a single Judge of the High Court of Saurashtra and could not apply to a judgment of a single Judge of the Bombay High Court and could not operate to restrict a right of appeal exercisable under CI
15  of the Letters Patent the judgment of the single Judge of the Bombay High Court was under section 57 of the  subject to appeal to a Division Bench without a certificate of the single Judge
443 D F