Case: P. Mohammed Meera Lebbai Vs. Thirumalaya Gounder Ramaswamy Gounder And Others

the right of a party to have an appeal heard by a Division Bench was merely a matter of procedure and could therefore, be taken away retrospectively by implication. Learned counsel for the appellant also placed reliance upon decision of this Court in Garikapati Veereva v. N. Subbaiah Choudhury, 1957 SCR 488 : ( (S) AIR 1975 SC 540 ), in which the following propositions were laid down:"(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.(2) The right of appeal is not a mere matter of procedure but is a substantive right.(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.(4) The right of appeal is a vested right and such right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal.(5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."and learned counsel particularly laid stress on the third proposition. We are in respectful agreement with what has been laid down by this Court. But it is difficult to appreciate what benefit the appellant can obtain from what has been laid down by this Court. For, this is not a case where any right of appeal conferred by law upon the appellant has been taken away. The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of S. 96 of the Code of Civil Procedure. The learned counsel, however, contended that in the instant case it is traceable to the provisions of Travancore-Cochin High Court Act of 1949. That Act as its preamble shows was enacted for making provision regulating the business of the High Court of Travancore-Cochin for fixing the jurisdiction of single Judges, Division Benches and Full Benches and for certain other matters connected with the functions of the High Court. It did not purport to confer a right of appeal on the parties, but merely dealt with procedural matters, matters which are dealt with by several High Courts under the Letters Patent. Even the Travancore-Cochin Civil Courts Act, 1951 the provisions of which relate to civil courts subordinate to the High Court does not confer any right of appeal though it divides civil courts into four classes and defines their respective jurisdictions.3. An objection somewhat similar to the one raised by the appellant before us was raised before this Court in Ittavira Mathai v. Varkey Varkey, (1964) 1 SCR 495 : (AIR 1964 SC 907 ), Dealing with it this Court has observed at p. 514 : (of SCR): ( at p. 914 of AIR).“That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution, the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of judges who will not be less than five in number. But it does not follow from this that the legal requirements in this regard cannot be altered by a competent body. We, therefore, overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges."In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the circumstances, therefore, we must reject the appellants contention based upon the decision in Radhakishans case, ILR 1950 Nag 532 (FB): (AIR 1950 Nag 177).4. Learned counsel, however, contended that by depriving the appellant of the right to have his appeal heard by a Division Bench his further right of appeal to this Court under Art. 133 was affected and that since that right also vested in him when he instituted the suit it could not be taken away retrospectively except by an express provision. There is a simple answer to this contention. The answer is that once it is held that no party has a vested right to have his appeal to be heard by more than one judge of the High Court, no right to prefer an appeal under Art. 133 can be said to vest in him, the right under which being unavailable in case heard and disposed of by a single judge of the High Court. The argument of learned counsel thus fails.5. One more point was sought to be urged by learned counsel for the appellant. The point is based upon the fact that one of the contesting respondents has raised a question as to the maintainability of the suit. According to learned counsel that person being in pari delicto with the plaintiff, ought not to have been permitted to raise that question. Since the point was not raised by the appellant in either of the two courts below we declined to permit it to be raised for the first time before us.