P.K. Balasubramanyan, J. 1. A.S. 700 of 1999 was an appeal filed by the defendant in a suit for specific performance. The suit was decreed by the trial court. When the matter came up for admission, the plaintiff-respondent who had appeared submitted that the appeal itself may be heard and a decision taken one way or the other. With the consent of both the parties, the appeal itself was then heard after giving counsel time to get ready. By judgment and decree dt. 14.12.1999 the appeal was dismissed finding that the trial court was right in granting a decree. This petition is filed by the defendant-appellant for a review of the judgment.
2. The only ground raised in the petition for review is that the appeal A.S. 700 of 1999 ought not to have been heard by a Division Bench, According to counsel, by the Division Bench hearing the appeal the appellant was deprived of the opportunity of filing Letters Patent Appeal under S. 5(ii) of the High Court Act and this amounts to discrimination. The further contention raised is that by virtue of the amendment of the Civil Courts Act raising appellate jurisdiction of the District Court to Rs. 2 lakhs, there is an implied repeal of the Kerala High Court Act leading to the position that all the appeals against original decrees have now to be heard by a Single Judge and they cannot be heard by a Division Bench. Before dealing with these contentions we think it proper to refer to the relevant provisions and the facts leading to the review petition.
3. In the plaint the relief of specific performance was valued at Rs. 5,00,000 as enjoined by S. 42 of the Kerala Court Fees and Suits Valuation Act. The fee payable in a suit for specific performance whether with or without possession in the case of a contract of sale is to be computed on the amount of the consideration. Here apparently the consideration was Rs. 5,00,000 and the plaintiff while suing valued the relief on that amount. The suit was decreed. The defendant filed an appeal before this Court. In the Memorandum of Appeal the appellant showed the valuation as Rs. 5,00,000 as in the plaint. In terms of S. 3(13)(b) of the High Court Act a Single Judge of the High Court could hear an appeal from an original decree or order in any suit or other proceeding where the amount or value of the subject matter of the suit or other proceeding does not exceed Rs. 1,00,000. This provision which replaces the earlier provision showing a lesser amount came into force with effect from 29.8.1989. The suit giving rise to the above appeal was filed on 6.1.1997 when the above provision governed the hearing of an appeal by the High Court. All the residuary powers under the Kerala High Court Act vest with the Division Bench and under S. 4(2)(a) it had the power to hear an appeal from a decree or order of a civil court except those coming under S. 3. Here that would mean that except appeals covered by S. 3(13)(b), the appeal had to be heard by a Division Bench. Hence the Registry sent up the appeal to the Division Bench. The Division Bench had without any demur from the appellant entertained the application by the appellant for permission to appeal as an indigent person, had allowed it and had thereafter considered the matter on merits after hearing both sides and dismissed the appeal without admitting it so as to confer an advantage on the appellant since a dismissal subsequent to admission would have entitled the payment of the full court fee by the appellant as against one third of the court fee payable initially in appeals in terms of S. 52 of the Kerala Court Fees and Suits Valuation Act. In fact going by the relevant provisions of the Kerala High Court Act the Registry was bound to send up the appeal only before a Division Bench and that was what was done in this case.
4. Even at the hearing, no such objection as sought to be raised in this review petition was raised. In fact it could not be raised in the light of the provisions of the Kerala High Court Act and the practice followed in this Court all these years. On the sole ground that no such objection was raised when the appeal was being heard or at any time before, would justify a dismissal of this review petition on the ground that the judgment of this Court does not suffer from any error apparent on the face of the record.
5. Moreover, as the Kerala High Court Act now stands the appeal could not be heard by a Single Judge as canvassed for by the appellant. The appeal had to be heard only by a Division Bench and the appeal was heard and disposed of by a Division Bench.
6. Learned counsel for the review petitioner relied on S. 12 of the Kerala Civil Courts Act to contend that save as otherwise provided in S. 13 of the Act, all regular appeals, when such appeals are allowed by law, lie from the decrees or orders of the Subordinate Judge's Court to the High Court and the High Court referred to therein must be understood as a Single Judge of the High Court. We cannot accept this contention. Whether it be a Single Judge or a Division Bench, it is the High Court that hears the appeal and the rules of business of the High Court in respect of hearing is based on the Kerala High Court Act and the assigning of the cases of the learned Chief Justice. Moreover no litigant has a right to say as to how many Judges should hear his case. (See Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907). Similarly the fact that the jurisdiction of the District Court as an Appellate Court was enhanced to Rs. 2,00,000 with effect from 27.3.1996 cannot affect the question in this case as the present appeal was governed by the provision as it stood prior to the amendment since the suit was instituted long before the amendment of S. 13 of the Civil Court Act. That the provision that was in force during the filing of the suit would govern the situation is clear from the decisions in Clara v. Augustine (1984 KLT 377), and Kunnappadi Kalliani v. Lekharaj (1991 (2) KLJ 106). Moreover, the amendment of the Civil Courts Act and the enlargement of the appellate jurisdiction of the District Court cannot by itself affect the jurisdiction conferred by Ss. 3 and 4 of the Kerala High Court Act. Thus it is clear that there was nothing in the appeal being entertained and disposed of by the Division Bench.
7. We may also notice that under S. 4(1) of the Kerala High Court Act the Division Bench has power to hear any matter in respect of which the powers of the High Court can be exercised by a Single Judge. It is therefore clear, even if there is any substance in the argument raised by counsel for the review petitioner that the decision of the Division Bench in the appeal cannot be said to be one without jurisdiction or illegal. The Division bench could always exercise jurisdiction in respect of an appeal filed before the High Court even if it could have been heard by a Single Judge in terms of S. 3(13) of the High Court Act.
8. The argument that the hearing of an appeal by the Division Bench would deprive the appellant of the right to file an appeal under S. 5(ii) of the High Court Act and that would amount to discrimination cannot be accepted. In a suit in which the valuation was Rs. 5,00,000 the appeal had to be filed only before the High Court and the hearing of an appeal by the High Court is governed by the Kerala High Court Act. Right of appeal is only a conferred right and the hearing of the appeal is governed by the rules in that behalf. In its wisdom, the legislature has provided that appeals in which the subject matter is valued above a particular amount should be heard by a Division Bench so that there will be application of mind by two Judges sitting together rather than by a single Judge. No discriminatory or arbitrary treatment can be found to exist in such a provision. No litigant can also say that he must have the right to file a Letters Patent Appeal in the High Court and the failure to get such an opportunity in view of the valuation in the appeal would amount to discriminatory treatment. There is no vested right in the litigant to file an appeal though of course, once the right is conferred, it could become a vested right in given circumstances.
9. We see no merit in this Review Petition. It is dismissed. Registry to comply with the requirement of O. XXXIII R. 14 of the Code.