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Barada Kanta Das Vs. Surendra Chandra Das and anr. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 2 of 1952
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110; Constitution of India - Article 133(1)
AppellantBarada Kanta Das
RespondentSurendra Chandra Das and anr.
Appellant AdvocateS.M. Lahiri and K.P. Bhattacherjee, Advs.
Respondent AdvocateS.K. Ghose, Adv.
DispositionPetition dismissed
Prior history
Ram Labhaya, Ag. C. J.
1. This is a petition for leave to appeal to the Supreme Court of India from an appellate decree of this Court, dated 15-6-51, by which the decree of the lower Appellate Court was set aside and plaintiff's suit for redemption was decreed against all the defendants.
2. In the petition, it has been stated that the suit out of which the second appeal arose was valued at RS. 4000 only. This valuation was far below the valuation required for an appeal to the Supreme Court,
Excerpt:
- - no other exceptional circumstances have been shown which may justify the grant of a certificate under clause (c) of section 109, civil p. there are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money' and has no application to disputes relating to immovable property which were not incapable of valuation. the respondents complain that this is flinging a surprise on them and that if even an affidavit had been put in by the petitioner, they would have had a chance of putting in a counter affidavit......the expiry of the prescribed period.' the defence set up was that the property was sold by the document in question which, in point of fact, was not a kat-kabala, and that it evidenced an out and out sale with a condition for reconveyance. as observed by the learned chief justice in his judgment, dated 15-6-51, the only question argued in this court was, whether the document, ex. a, evidenced an out and out sale or a mortgage by conditional sale. the courts below had concurrently found that the document was one of sale. the language employed in the document, the surrounding circumstances and all other evidence bearing on the question were taken into consideration and it was found by this court that the intention of the parties was to regard the transaction as a mortgage by.....
Judgment:

Ram Labhaya, Ag. C. J.

1. This is a petition for leave to appeal to the Supreme Court of India from an appellate decree of this Court, dated 15-6-51, by which the decree of the lower Appellate Court was set aside and plaintiff's suit for redemption was decreed against all the defendants.

2. In the petition, it has been stated that the suit out of which the second appeal arose was valued at RS. 4000 only. This valuation was far below the valuation required for an appeal to the Supreme Court, but as a substantial question of law was involved, it was a fit case for appeal to the Supreme Court of India. In the prayer contained in the petition, the certificate was asked for on the ground that the case fulfilled the requirements of Clause (c) of Section 109, Civil P. C. At the hearing, Mr. Lahiri, the learned counsel for the petitioner, also argued that the case was covered by para. 2 of Section 110, Civil P. C.

3. The learned counsel for the petitioner has urged that the petition for leave would be governed by Sections 109 & 110, Civil P. C. as they stood before the amendment by which the pecuniary limit was raised from Rs. 10,000 to Rs. 20,000 in cases covered by Clauses (a) and (b) of Section 109, Civil P. C. He has also pointed out that so far as the valuation goes, the case would even fulfil the requirements of Art. 133 of the Constitution of India.

4. The contention that this case should be certified as a fit case for appeal to the Supreme Court under Section 109(c), Civil P. C. should not prevail. The suit in this case was one for the redemption of property. It was based on a document which was executed on 18-4-31. It was described as a Kat-kabala. The last paragraph in this document was as follows :

'But after the expiry of said two years, the claim of reconveyance of us or of our successor-in-interest shall cease; we shall not be entitled to set forth any claim for the release of the said property from the mortgage by conditional sale, after the expiry of the prescribed period.'

The defence set up was that the property was sold by the document in question which, in point of fact, was not a kat-kabala, and that it evidenced an out and out sale with a condition for reconveyance. As observed by the learned Chief Justice in his judgment, dated 15-6-51, the only question argued in this Court was, whether the document, EX. A, evidenced an out and out sale or a mortgage by conditional sale. The Courts below had concurrently found that the document was one of sale. The language employed in the document, the surrounding circumstances and all other evidence bearing on the question were taken into consideration and it was found by this Court that the intention of the parties was to regard the transaction as a mortgage by conditional sale. The case was disposed of on its own peculiar facts and circumstances. It cannot be said that any point involved in the case is of great public importance. It has not been shown that the decision given may govern numerous other cases. No other exceptional circumstances have been shown which may justify the grant of a certificate under Clause (c) of Section 109, Civil P. C.

In Radheylal v. Niranjannath, A. I. R. 1941 ALL. 211, it was held that the expression 'fit one for appeal to His Majesty in Council' meant that the question should be either of great general importance to the public at large or of great private importance to the particular litigant, and that its importance was not measurable in money. In Hari Saran v. Hari Kishan Das, A. I. R. 1942 oudh 283, also it appears to have been emphasised that where the question involved is not of public importance, leave to appeal can be granted under Section 109(c) only in special cases in which the matter in dispute is incapable of being valued in money, and that the question of mesne profits was not such a question. In Haveli Shah v. Kalyan Singh, A. I. R. 1934 Lah. 515 (2). the Lahore High Court held, following Radhakrishna Aiyar v. Swaminatha Aiyar, A.I.R. 1921 P. C. 25 that Clause (c) of Section 109 applies to cases in which it is impossible to define in money value the exact character of dispute; there are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money' and has no application to disputes relating to immovable property which were not incapable of valuation. The existence of a mere substantial question of law is not enough to bring the case within the purview of Clause (c):vide Equbal Bahadur v. Mt. Ram Sree, A. I. R. 1934 ALL 58.

5. It is not contended that the property involved in the suit, as distinguished from the subject-matter of litigation, viz., the right to redeem is incapable of money valuation. Besides considering that the question involved was one of interpretation of a document in the light of relevant material available, it could not be characterised as a question of wide public importance. A question whether a transaction of lease could be split up in two separate leases depending on an interpretation of the document was held in Equbal Bahadur v. Mt, Ham Sree, A. I. R 1934 ALL 58, not to be of any general or wide importance. We do not think in view of these authorities, that this case can be certified as a fit one for appeal under Section 109(c), Civil P. C., or Clause (c) of Article 133 of the Constitution.

6. Mr. Lahiri has also argued that since the value of the property which was sought to be redeemed exceeded rupees ten thousand in value on the date of the decree of this Court, the case fell under para. 2 of Section 110, Civil P. C., as it stood on the date this litigation commenced. He even suggested that the value of the property, if assessed, could be found to exceed rupees twenty thousand on the date of the decree of the Court. Mr. Ghose for the opposite party has argued that the prayer in the petition is limited to a certificate for leave under Clause (c) of Section 109 and the learned counsel for the petitioner should not be allowed to place his case under para. 2 of Section 110, particularly in view of the fact that the petition contained no allegation as to the value of the property at the date of decree of this Court.

7. We think this objection ought to prevail-Mr. Lahiri is not putting forward a contention which could be regarded as purely legal. Paragraph 2 of Section 110 or the corresponding clause of Article 133 may apply in case it is otherwise found applicable if the property fulfils the requirements of Section 110 or Article 133 of the Constitution, as the case may be, in regard to its valuation. There is no such allegation in the petition. The statement of Mr. Lahiri as to valuation is not even now supported by any affidavit. The decree of this Court was passed on 15-6-51. The petition for leave was put in on 12-11-51. It was heard on 4-4-1952. Till then there was no allegation that in regard to valuation the proposed appeal would fulfil the requirements of para. 2 of Section 110 or of Clause (b) of Article 133. At the hearing for the first time, the learned counsel has stated that the requirements as to valuation would be found to be fulfilled if an enquiry into valuation is ordered. The respondents complain that this is flinging a surprise on them and that if even an affidavit had been put in by the petitioner, they would have had a chance of putting in a counter affidavit. We do not think it is fair or just to order an investigation into the valuation of the property on the date of the decree of this Court, in the circumstances of this case.

8. The learned counsel for the respondents has also argued that para. 2 of Section 110 could not apply as the decision does not affect rights in property other than the subject-matter of the suit.

9. In view of the absence of proof that the requirements of the law in regard to valuation are fulfilled, it is not necessary to pronounce on this question.

10. The petition is disallowed. We make no order as to costs.

Deka J.

11. I agree.


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