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

1. This is an appeal from a judgment of a single Judge of the Kerala High Court dismissing the appellants suit for recovery of possession of certain property and for mesne profits. It is not disputed that the only question of law which arises in this appeal is whether the appeal could be heard and disposed of by a single Judge of the High Court. The other questions raised are purely questions of fact. Article 133, Cl. (3) of the Constitution clearly provides that notwithstanding anything in the article no appeal shall lie to the Supreme Court from a judgment, decree or final order of one Judge of a High Court unless Parliament by law otherwise provides. Parliament has passed no law rendering the judgment of a single Judge appealable to the Supreme Court. Though this provision does not detract from the power of this Court under Art. 136 to entertain an appeal from a decision of a single Judge, it is the settled practice of this Court not to interfere with a finding of fact arrived at by the High Court unless it is satisfied that in arriving at the finding of fact the High Court had been guilty of grave errors. We gave opportunity to learned counsel to point out to us if the findings arrived at by the learned single Judge of the High Court are vitiated by any grave errors. But he was unable to point out any. We, therefore, declined to permit him to address us on the findings of fact.2. As regards the question of law it is desirable to set out how, according to the appellant, it arises. The suit was instituted on February 10, 1950 in the district court of Kottayam which was later transferred by it to the Court of the Subordinate Judge, Meenachil sometime in the year 1956 and was substantially decreed in the appellants favour on July 30, 1958. Three appeals were preferred against it. One was by Tirumalaya Gounder, the first defendant, and another in January, 1959 by H. B. Mohammad Rowther, 8th defendant. The appellant had also preferred an appeal against that part of the decree which was adverse to him. All these appeals were heard together and disposed of by a common judgment on August 10, 1960 and the appeals preferred by defendants 1 and 8 were allowed by the High Court while the appeal preferred by the appellant was dismissed. At the time the suit was instituted the Travancore-Cochin High Court Act 5 of 1125 M. E. (Corresponding to 1949 A.D.) was in force. Under S. 20 of that Act read with S. 21 all appeals to the High Court valued at an amount in excess of Rs. 1,000/- had to be heard by a Division Bench consisting of two Judges of the High Court. The appellants suit and the appeals taken by the respondents from the District Court and the Subordinate Judge were both valued at Rs. 3,000/- and, therefore, had Ss. 20 and 21 of the Act been in force on the date on which the appeals were instituted unquestionably they would have had to be heard by a Division Bench of two Judges. The aforesaid Act, was, however, repealed bythe Kerala High Court Act, 1958 being Act No. 5 of 1959 which received the assent of the President on February 6, 1959 and came into force on March 3, 1959. The appeals were placed for hearing before a single Judge overruling, we are informed by learned counsel, the appellants plea that they should be only heard by a Division Bench. The reason why the appeals were heard by a single Judge and not placed before a Division Bench, was that under S. 5 of the Kerala High Court Act 5 of 1959 the jurisdiction of a single Judge of the High Court to hear and dispose of appeals from an original decree was extended to appeals in which the value of the subject matter did not exceed Rs. 10,000. According to learned counsel the right to have the appeal heard by a Division Bench conferred by the Travancore-Cochin High Court Act which was in force not only when the suit but also when the appeals were filed, was not taken away expressly by Kerala Act 5 of 1959 and could not be taken away by implication. In support of his contention he placed strong reliance upon the decision in Radhakrishan v. Sridhar, ILR 1950 Nag 532: (AIR 1950 Nag 177 (FB) ) . In that case, just as here, the jurisdiction of a single Judge to hear an appeal of a value over Rs. 2,000 was challenged, even though by an amendment to an earlier rule made by the High Court in exercise of its power under Cl. 26 of the Letters Patent on May 27, 1948 all appeals from an appellate decree of a District Court were to be ordinarily heard and disposed of by a singlecontention was raised on behalf of the appellants counsel in that case that in the absence of any express provision rendering the amendment retrospective the amendment did not touch the right of an appellant which had accrued to him earlier to have his appeal heard by a Division Bench. The contention was upheld by the High Court. This decision was not approved of in Mahendra v. Darsan, ILR 31 Pat 446: (AIR 1952 Pat 341  ), on the ground that 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.

Reasoning:
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.