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1928 Supreme(Cal) 265
CALCUTTA HIGH COURT
Rankin, C.J, Suhrawardy, J., Page, J., C.C. Ghose, J., B.B. Ghose, J.
Sadar Ali & Ors. - Appellant
Versus
Doliluddin Ostagar - Respondent
Decided On : 17-07-1928
The main legal point established in the judgment is that the new clause in the Letters Patent takes away the right to go to the Privy Council in all second appeals decided by a single Judge, and that the date of institution of the suit is the determining factor for the applicability of the amended clause.
Headnote:
Appeal - Right of Appeal from Single Judge - New Letters Patent - Colonial Sugar Refining Co. v. Irving [1905] A.C. 369, Nana v. Sheku [1908] 32 Bom. 337, Framje v. Hormasji [1866] 3 B.H.C.R. 49, Runjit Singh v. Meherban [1878] 3 Cal. 662 - Section 111 of the Code - B.V. Satyanarayana Varaprasad Rao Vs. B.V. Bhashyakarulu Rao, AIR 1924 Mad 399 - Section 108, Government of India Act - [Summary of Acts and Sections referenced and discussed by the court] The court discussed the applicability of the new Letters Patent on the right of appeal from a single Judge, citing precedents such as Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 and Section 111 of the Code. It also considered the effect of Section 108, Government of India Act, and the interpretation of Section 111 of the Code in B.V. Satyanarayana Varaprasad Rao Vs. B.V. Bhashyakarulu Rao, AIR 1924 Mad 399.
Fact of the Case:
The case involved a rule calling upon the respondents to show cause why a certain memorandum of appeal should not be accepted and registered. The question raised was whether the applicants have a right of appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case is a fit one for appeal.
Finding of the Court:
The court found that the new clause in the Letters Patent takes away, in all second appeals decided by a single Judge, the right to go to the Privy Council under the ordinary law, though the right of the Judicial Committee to give special leave is not affected. The court also concluded that the date of institution of the suit is the determining factor for the applicability of the amended clause.
Issues: The main issue was whether the applicants have a right of appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case is a fit one for appeal.
Ratio Decidendi: The court held that the new clause in the Letters Patent takes away the right to go to the Privy Council in all second appeals decided by a single Judge, and that the date of institution of the suit is the determining factor for the applicability of the amended clause.
Final Decision: The rule was made absolute but without costs.
Certainly. Here are the key points from the provided legal document:
- The main legal issue was whether the applicants had the right to appeal from the decision of a single Judge in second appeal without a certificate from the Judge certifying the case as fit for appeal (!) .
- The court held that the new clause in the Letters Patent effectively removes the right to appeal to the Privy Council in all second appeals decided by a single Judge, although the Judicial Committee's power to grant special leave remains unaffected (!) (!) .
- The determination of whether the new clause applies depends on the date of the institution of the suit; specifically, whether the suit was instituted before or after the clause came into effect (!) .
- The court emphasized that rights of appeal are not purely procedural but are substantive rights, and such rights existing at the time of suit institution are protected unless explicitly altered (!) (!) .
- The court concluded that the new clause in the Letters Patent should not be applied retroactively to pending cases, especially those instituted before the clause's effective date, unless there is clear legislative intent to do so (!) (!) .
- The court recognized that the amendments aim to streamline litigation and reduce delays, but these objectives do not justify applying the new rules retrospectively to cases initiated prior to their enactment (!) (!) .
- The decision was to grant the rule, making it absolute, but without costs, affirming that the rights of appeal vested before the new clause's enforcement remain protected (!) .
Please let me know if you need a more detailed analysis or specific legal advice based on these points.
JUDGMENT
Rankin, C.J. - This is a rule calling upon the respondents to show cause why a certain memorandum of appeal presented to this Court on 30th April 1928 should not be accepted and registered. The question raised is whether or not the applicants have a right of appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case is a fit one for appeal. This question arises upon the new Letters Patent which came into effect on 14th January 1928.
2. The facts are that the suit was instituted on 7th October 1920 and that after an appeal to the District Court a
second appeal was filed in this High Court by the present applicants on 4th October 1926. Under certain rules of this Court it was laid before Mallik, J. for disposal on or about 4th April 1928, and on that date the appeal was dismissed the learned Judge refusing to declare that the case was a fit one for a further appeal.
3. In these circumstances it is plain enough that the applicants have no right of appeal if the present ease is to be governed by the terms of the new clause which by the said Letters Patent has been substituted for the 15th clause of the Letters Patent of this High Court as they stood prior to 14th January 1928. The contention of the applicants is that the new clause cannot be applied to this case because to do so would be to apply it retrospectively, and so as to impair and indeed to defeat a substantive right which was in existence prior to 14th January 1928. For this proposition the judgment of the Judicial Committee in Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 is cited and it is clear enough that the law as there laid down is applicable in India : AIR 1927 242 (Privy Council) and Nana v. Sheku [1908] 32 Bom. 337.
4. The only Indian decision upon the effect of an amendment of the Letters-Patent as regards rights of appeal would appear to be that of Framje v. Hormasji [1866] 3 B.H.C.R. 49. The case had been decided at first instance by two Judges and under the Letters Patent of 1862 an appeal lay within the High Court (in practice an appeal to three Judges). By the Letters Patent of 1865 no such appeal was provided and the appeal lay to the Privy Council. The decree not having been perfected before the comming into operation of the Letters Patent of 1865 it was held that there was no right to appeal to the High Court.
5. The judgment of Sir Richard Couch proceeded upon the footing that the question was one of procedure and of the same character as the question of costs in Wright v. Hale [1861] 30 L.J. Ex. 40. A suggestion was added, however, that Section 2 of the new Letters Patent, though it might bear a more limited meaning, pointed to an intention that pending suits should be treated as if they had been brought under the new Letters Patent. This decision was noticed in Runjit Singh v. Meherban [1878] 3 Cal. 662, a case really governed by Section 6, General Clauses Act (1 of 1868). There Garth, C.J., noticed that the word "procedure" had been used by Sir Richard Couch in an extended sense but approved of the Bombay decision for other reasons which he did not specify.
6. It is urged for the applicants that the main ground of the decision in Framji v. Hormasji [1866] 3 B.H.C.R. 49 is untenable in view of what was said by Lord Macnaghten in Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 and that any other grounds upon which the decision may be defended are inapplicable to the present case. The applicants crave in aid the observation of Sir Richard Couch that
in construing a charter of this kind the Court should, I think, be guided by the rules and principles upon which Acts of Parliament are construed : Framji v. Hormasji [1866] 3 B.H.C.R. 49.
6. Sir Richard Garth was apparently of the same opinion.
7. It is not contended that Section 6, General Clauses Act (10 of 1897) or Section 38, Interpretation Act, 1889 (52 and 53 vie. Cap. 63) applies to Letters Patent, but it is contended that
