1928 (7) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Right of appeal from the decision of a single Judge under the new Letters Patent.
2. Retrospective application of the new Letters Patent.
3. Interpretation of the new Letters Patent in relation to pending suits.
4. Effect of Section 111 of the Civil Procedure Code on the new Letters Patent.

Detailed Analysis:

1. Right of Appeal from the Decision of a Single Judge under the New Letters Patent
The primary issue is whether the applicants have a right of appeal from the decision of a single Judge sitting in second appeal without a certificate from him that the case is fit for appeal. The new Letters Patent, effective from 14th January 1928, substituted the 15th clause of the previous Letters Patent, which impacts the applicants' right to appeal. The applicants argue that the new clause should not apply retrospectively as it would impair a substantive right existing prior to 14th January 1928.

2. Retrospective Application of the New Letters Patent
The applicants contend that applying the new clause retrospectively would defeat a substantive right. They cite Colonial Sugar Refining Co. v. Irving [1905] A.C. 369, which is applicable in India, emphasizing that rights of appeal are substantive and not procedural. The judgment references several Indian cases, including Delhi Cloth Co. v. Income-tax Commissioner and Nana v. Sheku [1908] 32 Bom. 337, to support this view.

3. Interpretation of the New Letters Patent in Relation to Pending Suits
The court examines whether the new Letters Patent should apply to suits instituted before 14th January 1928. The applicants argue that their right to a Letters Patent appeal from a single Judge's decision was a substantive right vested at the date of the suit's institution. The court discusses the reasoning in Framji v. Hormasji [1866] 3 B.H.C.R. 49 and subsequent cases, noting that the right of appeal is considered a substantive right arising at the date of the suit.

4. Effect of Section 111 of the Civil Procedure Code on the New Letters Patent
Section 111 of the Civil Procedure Code prohibits an appeal to the Privy Council from a single Judge, overriding Clause 39 of the Letters Patent. The court acknowledges that the new clause in the Letters Patent removes the right to appeal to the Privy Council in second appeals decided by a single Judge without a certificate. This change impacts pending cases, as it takes away existing rights of appeal.

Conclusion
The court concludes that the new Letters Patent cannot be applied retrospectively to pending cases without taking away existing rights of appeal. The provision that the new Letters Patent shall come into force on the date of publication in the Gazette does not imply retrospective effect. The court rules that the date of institution of the suit is the determining factor for the applicability of the amended clause. Therefore, the rule is made absolute, allowing the appeal to be accepted and registered, but without costs.

Separate Judgments
All judges (C.C. Ghose, Suhrawardy, B.B. Ghose, and Page) concurred with the judgment delivered by Rankin, C.J., agreeing with the conclusions reached.