Desai, C.J. - (1.)In this and connected first Appeals, which are pending in this court since 1950 or 1951 and arise out of suits instituted in 1948 or there about, this Court has on its own motion issued a notice calling upon the parties to the appeals to show cause why they should not be transferred by it under Section 24, C. P. C. to the courts of the District Judges concerned for disposal. The subject-matter of appeal in each of the appeals is valued at more than Rs. 5,000/- and less than Rs. 10,000/-. The appeals were instituted in this court because under the Bengal, Agra and Assam Civil Courts Act, 1887, Section 21(1)(b), as it was in force on the dates of the institution, they lay in this Court end not in the courts of the District Judges. With effect from 30-11-1954, Section 21(1)(b) has been amended by the U. P. Civil Laws (Reforms and Amendment) Act (No. XXIV of 1954), vide serial No. 4 of the Schedule, and the limit to the value of the original suit in which a decree appealable to the District Judge can be passed is raised from Rs 5,000/- to Rs. 10,000/-. The consequence of the amendment is that now similar appeals would lie in the court of the District Judge. Section 3(1) of the Amendment Act provides that any amendment made by it will not affect the validity of anything already done or any right already acquired and that any proceeding instituted or commenced in any court prior to its commencement will, notwithstanding any amendment made by it, continue to be heard and decided by it. Sub-section (2) provides for the effect of an amendment made by it affecting the period of limitation prescribed for any appeal; it lays down that despite the amendment and despite the fact that the appeal will under the Amending Act "now lie in a different court", the old period of limitation applicable to it, if it has started to run before the commencement of the Act, will continue to be the period of limitation.
(2.)Section 24, C. P. C. is to the effect that the High Court of its own motion, and without notice to the parties, may at any stage transfer any appeal pending before it for trial or disposal "to any court subordinate to it and competent to try and dispose of the same", or "withdraw any, suit, appeal pending in any court subordinate to it, and-- (1) try or dispose of the same; or (2) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same."
(3.)Since under the U. P. Amending Act of 1954. District Judges are now competent to hear appeals like the instant one this court thought of transferring some of them to the District Judges concerned for disposal, but, since the court's power to transfer them was a matter of controversy, this Court took the step of issuing notices to the parties before passing orders of transfer. Except for the appellant in the instant case, all parties are opposed to the transfer. Sri C.B. Misra for the appellant in the instant case informed the Court that he was instructed by his client not to oppose the transfer. We have had the advantage of hearing the arguments of Sri A.K. Kirty in the instant case and of Sri K.C. Saxena, Sri G.N. Kunzru, Sri D. Sanyal and Sri Jagdish Swarup in the connected cases. The burden of the arguments advanced before us was that the U. P. Amending Act has no retrospective effect and does not govern suits instituted before it came into force, that in those suits the parties acquired a right of appeal to the High Court from the civil Judge's decree and that as that right has not been taken away by the U. P. Amending Act, their appeals must be heard by this court and cannot be transferred to the District Judges. Numerous authorities were cited in support of the view that a party to a suit acquires, on the date of its institution, a right of appeal in accordance with the law in force on that date. We were referred to Colonial Sugar Refining Company Limited v. Irving, 1905 AC 369, Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr., Delhi, AIR 1927 PC 242, Cyril Austin Spencer v. M.H. Spencer, 1955 All LJ 307, etc. The proposition that a right to an appeal is a right acquired on the date of the institution of the suit is too well established to require citation of authorities. Nobody disputes that in spite of the U. P. Amending Act, the appeals were to be instituted in, and could be disposed of, by this Court. If they are sent to the District Judges concerned it is not on the ground that after the enforcement of the U. P. Amending Act this Court has lost jurisdiction to dispose of them, but by way of transfer by this Court to the District Judges under Section 24, C. P. C. The right of a litigant to an appeal is always subject to the right of the High Court to transfer it under Section 24. The High Court has been given an overriding right to transfer a case to a competent court and when it exercises this power there arises absolutely no question of any party's right being affected thereby. The power of transfer has been given in supersession of the parties right to have the case tried by a particular court; in other words, the right of the parties is subject to the High Court's power of transfer. It cannot be disputed that though the parties have a right of action in a court exercising territoried jurisdiction over a particular area the High Court can transfer the case to another court though it does not possess territorial jurisdiction over that area. If the District Judges are competent to dispose of these appeals this court has the power under Section 24 to transfer them to them, regardless of the question of the right of the parties to have them disposed of by this Court. The question, therefore, that should arise is whether the District Judges are competent to dispose them of or not. Since the right vested in this Court to transfer the appeals is in supersession of the right of the parties to have the appeals disposed of by this Court, it follows that the question of competency of the District Judges is to be determined without any regard to the right of the parties. The competency is to be seen, not with reference to the particular jurisdictional fact, involved in the appeals, but generally with reference to their nature, it may be that these appeals are within the jurisdiction of this Court, but if in their general nature they are also within the jurisdiction of District Judges they must be held to be competent to dispose them of. After the enforcement of the U. P. Amending Act, appeals of this nature are within the jurisdiction of District Judges. They have been given jurisdiction to dispose of them, and they must be held to be competent to dispose them of though certain appeals, on account of their arising out of suits instituted before its enforcement, cannot be entertained by them. A court can be said to be competent to dispose of a suit although, on account of certain circumstances in it, it has no jurisdiction to try it; if it would have, jurisdiction to try it in other circumstances, it is competent. The District Judges would have jurisdiction to dispose of the appeals if the suits, out of which they arise had been instituted after the enforcement of the U. P. Amending Act. The argument that if the appeals are transferred to them the parties would be deprived of their right to have them heard by this court does not appeal to me at all. Even if it be conceded that the right that vests in a litigant on the date of the institution of the suit is that of appealing from the adverse decision in it to a particular court, that right has been already "taken away by the provisions of Section 24, C. P. C. which confer power upon this court to transfer it to another court. Ordinarily only one court has jurisdiction to try a particular case, and, when this Court is given the power to transfer it to another court, provided it is competent, it necessarily means that it is transferred to a court, even though it had otherwise no jurisdiction to dispose of it. Vested rights are not immunie from destruction; they can be taken away by the legislature. Section 24, C. P. C. has already taken away the vested right to have a particular case heard by a particular court. So long as the provisions of Section 24 are constitutional the argument that they take away vested rights is one that cannot be entertained by this Court.