GANPAT RAI HIRALAL AND ANOTHER versus AGGARWAL CHAMBER OF COMMERCE LTD

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 (c) of clause (1) of 11rticle 133 of the Constitution,

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The fact5 in Civil Appeal No. 152. of 1951 are different from those in the other two appeals, and the consequences are different also.

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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 0n 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. ·

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The correctness and the validity of the payment order in Civil App<lal No. 152 of 1951 was challenged in appeals taken to the High Court by the Official T~iquidator and the contributory. The order of the Liquidation Judge was modified in favour of the T~iquidator, and as against a sum of Rs. 4,762-13-3 ordered to be paid, there was au order for the payment of Rs. 24,005-7-3. · On further appeal by the contributory to the Judicial Committee, it was he:d 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.

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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 Divisiou 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 Ju,dge m~Lde au order for payment of Rs. 8,191-0-9 on 18th January, 1949, as aforesaid.

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On 2nd February, 1950, the firm M urari r~al-Hari Ram, appellant in Civil Appeal No. 152of 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 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

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. · · h d pre erre f d f rom t e or er h d d1sm1ssmg t e amen ment petition, but it was thrown out on the ground of want of a certificate from the Single Judge. This order is dated 1st May, ~950, and is couched in these terms: "We have recently held in Ganpat Bai Hira Lal v. Aggarwal Chamber of Comnurce, Ltd., L.P.A. Nos. 493 and 494 of Samvat 2005 (Pepsu) that no appeal lies from an order of a Single Bencb 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 applic[ltion for a certificate to the Single Bsnch, from whose decision he is appealing, but the same w:i.s refused. The appeal is therefore not competent and is dismissed in limine."

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The reference in the order to the case of Ganpat Rai HiraLalv. Aggarwal Chamber ofCommerceLtd., L.P.A. Nos. 493 and 494 of Sam vat 2005 (Pepsu) is to the o;rder m:i.de by the High Court in the connected matter which has given rise to the two Appeals Nos.167 and 167-Aof 1951. There, an appeal w:i,~ lodged from the payment order of the Liquidation Judge, but it was dismiss~d on the same ground, namely, want of a certificate from the Single Judge.

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In Civil Appeal No. 152 of 1951, the argument for the appellant is that no certificate from the Single Judge is necessary, as the matter is governed not by Ordinance X of 2005 of the Patiala State but by the Patiala :::tates Judicature Farman E 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 made in the e~ercise of civil ~8 appellate jurisdiction. It is, however, tllear that we are not bo-overned h.)' this provision. The amendment application was made on 2nd February, 1950, as stated alre~dy.. No appeal is provided nuder 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. 'l'here is no warrant for tli.e view that the amendment petition is a continuation of the suit or proceedings therein. It is in the nature of :i.n independent proceeding, though connected with the order of which amendment is Bought. Sucli 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. 'fhe section is in the following terms:

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"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. ... "

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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 eff~ct to the Ordinance which came into force in August, 1g43, 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.

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In the other two Appealo Nos. 167 ,ind 167A of 1951, different considerations come into play. 'rhe payment order of the' Liquidation Judge was on 18th .January, 1949, and the :1ppeal 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 had a right of appeal from the payment order without a certificate. They could not be deprived of this right by a subse-

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· h quent c ange m t e law, unless h the later enactment provides expressly or by necessary implication for retrospective effect being given. Th~ learned Judges of the High Court conceded this in their order, but they thought that section 116 of Ordinance X of 2005 (1948-49) c·ontained an express provision to the contrary. 'rhe section is in these terms:

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" Notwithstanding anything contained in this Ordinance, :di suits, appe:tls, revisions, applications, reviews, executions and other proceedings, or any of them, whether civil or criminal, pending in the Courts a.nd before judicial authorities in any Covenanting St:tte 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 snits, appeals, revisions, reviews, executions, applications aud other proceedings, or any of them, as if the same had been duly commenced and continued in such Courts or before such authorities."

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It is fairly obvious that this 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 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. 'l'he section obviously means that all rights which arose or are likely to 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 Covenant- .ing 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(') clearly applies to the facts, and the order of the High Court that the appeals are not competent is, in' om opinion, erroneous.

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The result is that Appeal No. 152 of .1951 is dismissed with costs throughout, while Appeals Nos. 167 and 167 A of 19.51 are allowed with costs throughout.

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Appeal No. 12.5 dismissed.

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Appeals Nos. 167 and 167 A .allowed.

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Agents for the a.pp~llants in Appeals Nos. 167 and 167A: Mohan Behan Lal.

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Agent for the appellant in Appeal No. 152 : Kitndan Lal Mehta.

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Agent for respondents in Appeals Nos. 167 and 167 A: Naunit Lal.

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Agent for respondent in Appeal No. 152: Mohan Behari Lal.

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HIRALAL AND OTHERS

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v.

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BADKULAL AND OTHERS. [MEHR CHAND MAHAJAN and BHAGWATI JJ.]

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Acknowledgment-Whether gives fresh cause of action- Practice -Party in possession of documentary evidence-Duty produce.

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Where with the

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entry

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entries: "After the Held, that

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Maniram Seth Rup Chand Fateh Ganga Singh Kahan Chand Dularam Daya1al Amritlal M11rtuza Fasih1mnissa It state written

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their the. Murugesam Pillai Manickavasaka Pandara (44

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