1. So far as the application for a Certificate for leave to appeal to the Supreme Court under Art, 133(1) of the Constitution of India is concerned, the value of the subject matter of the dispute in the Court of the first instance and still in dispute on appeal being the property which was sold in pursuance of the directions contained in the Decree Absolute for sale, was and is not less than Rs.25,000/-. As a matter of fact, the sale took place at Rs.20,00,000/- the requirement of Clause (a) of Art. 133 is fulfilled.
2. Our judgment and decree affirms the decision of the Court immediately below and it is therefore necessary to consider whether we should further certify that the appeal involves substantial questions of law.
3. In paragraph 7 of the petition 13 questions have been set out as being substantial questions of law arising in the proposed appeal to the Supreme Court. The 13 questions cover closely typed about three and a half pages of foolscap size. Some of the questions contain an argument or a hypothesis and then a question of law and some others more questions than one in one question. It is highly desirable that a question of law should be stated with precision and brevity to bring out the correct point of law involved. It can never within itself make a presumption or hypothesis. Moreover, as pointed out by Mr.Thakkar, the learned Counsel for respondent No.1 even if a question be a question of law Art. 133(1) requires that it must be substantial question of law and the petition for a certificate must set out how what the petitioner states to be questions of the petitioner states to be questions of law are substantial questions of law. There is no such statement in this petition as to why or how according to the petitioner any of the questions of law is a substantial question of law. Mr. Thakkar has contended that in the absence of the formulation of proper questions of law and in the absence of any statement in the petition as to how any of the questions of law is a substantial question of law, this petition should be rejected. Mr. Thakkar's contention has very great force. It may be that hereafter unless the petition itself clearly and properly formulates what according to the petitioner are questions of law and thereafter states how according to the petitioner those questions of law are substantial questions of law such petitions may have to be rejected. In the absence of such a formulation and the indication of the material showing it to be a substantial question of law, the respondents in such petitions are left to argue after merely hearing the oral arguments of the counsel for the petitioner and the Court has to necessarily hear long arguments or to find our for itself whether in fact a question of law exists and whether that question of law is a substantial question of law. In this case, however, we do not propose to take the extreme step of rejecting this petition on that ground but it should not be assumed that in future laxity in this behalf will be treated with the same leniency.
4. It is unnecessary for us to examine in detail all the 13 questions as formulated in paragraph 7 of the petition. We ourselves delivered our judgment against which an appeal to the Supreme Court is proposed to be filed and we know that the judgment involves an interpretation of Rule 500-A of the Rules of this High Court applicable on its Original Side. It is a question of law. The interpretation of the Rule would determine the question whether when an order is made granting to a mortgagee decree-holder liberty to bid and set off and his bid is accepted, the order implies and that he can set off his purchase price to the extent available even against the initial deposit of 25% of the price or whether an express order to that effect is necessary. As this interpretation would affect all such sales by Bombay High Court the interpretation is of importance not merely to the petitioners but also to all mortgagee decree-holders who have obtained liberty to bid and set-off and their bid is accepted. It is of general importance and is therefore a substantial question of law.
5. We, therefore, direct that a Certificate do issue under Art. 133(1)(a) of the Constitution and we further arising on our judgment is a substantial question of law. Costs to be costs in the Supreme Court appeal.
6. The proceedings of confirmation of sale stayed till and inclusive of 2nd August 1971. This stay is granted so that the petitioners may have reasonable time to make the necessary application to the Supreme Court.
7. Normally, this Court would have no occasion to make any observations after it directs a Certificate to issue under Art. 133(1) of the Constitution of India. What has however, transmitted in the matter of this petition. In our opinion, requires that we should briefly make our observations on some of the points though not exhaustively, nor on all the points.
8. Paragraph II of this petition refers to an earlier petition filed in this matter for a Certificate under Art. 133 of the Constitution. A reference to that petition could well have been omitted from this petition. The reference however, has, infact, been made in paragraph 11 of this petition to that petition and the observations which the Court then made. It may be stated that the petition was an extremely long document covering about 60 foolscap-size typed sheets and to it were annexed another about 23 pages of Annexures. When a petition for a Certificate under Art. 133 is made the record of the case before the Appeal Court would be available not only for the purposes of that petition, but also, if a Certificate is granted, for the purposes of the Supreme Court. The same would be the case about the Appellate Judgment of the High Court. It would be unnecessary and therefore incorrect to set out detailed facts and arguments - apart from the grounds of appeal to the Supreme Court - in that petition. Normally, the judgment of the High Court would contain all the relevant facts and the rival arguments advanced before the Appellate bench of the High Court at the hearing of that appeal. It would, therefore, in our opinion, not be correct to set out in such a petition all facts since the inception of the case at length nor even what the arguments of the parties even what the arguments of the parties were. If the judgment happens to contain any mis-statements or omissions, atleast according to the petitioner, it may be permissible to refer to them in such a petition. Only those facts which have not been referred to in the judgment of the Appeal Court and are not available from the record may, if and where permissible, be referred to in such a petition. In an unduly long petition, if the respondent does not appear, it would un carefully scrutinise the contents of the petition to satisfy itself that the petition contains no inaccuracies or mis-statements because, if a Certificate is granted, the Supreme Court, when hearing the appeal would naturally take the view that the appellate Court had offered no remarks as to nay part of the contents of the petition, though it must have read the petition before granting the Certificate. But normally the respondent would appear on such a petition and then file an affidavit in reply. It would not be improbable that if the petition has been turned into a complete history of the case, both as to facts and arguments, the affidavit in reply also would therefore be long and controversial. In such an event it would unnecessarily result in a long hearing and compel the Court to closely study the rival arguments and offer its own remarks. Such difficulties must be avoided and in our opinion, if a petition is likely to create such difficulties, it should be dealt with very strictly and awarded the fate it would deserve. As a matter of fact, when a judgment is delivered in open Court - as was done in this case - Counsel should point out if the Court happens to make any such mis-statements of fact or an omission to deal with any important arguments, so that the Court can immediately consider and do what it thinks is necessary and proper. By way of recording a question of fact in this case we may state that no such attempt was made when our judgment against which an appeal is proposed to be filed to the Supreme Court, was delivered by this Court.
9. In paragraph 2 of the petition certain statements are made in respect of the Report dated 10th June 1964 and a copy thereof is annexed as Ex. A to the petition. Out attention was not invited to this Report during the hearing of the appeal before us. As a matter of fact, it appears that it did not even form part of the record or even the appeal Paper Book. In our opinion, and we say it with some emphasis, that it was totally incorrect to annex a copy of that Report to the present petition. It is obviously an attempt to rely upon it before the Supreme Court in spite of the fact that this Court's attention was never drawn to it. At this stage it is out of place and unnecessary for us to express any opinion as to the relevance of that report to the appeal before us and we therefore refrain from expressing any such opinion.
In paragraph 4 of the petition it is stated as follows : -
'During the course of arguments in the appeal for the first time, the respondent No.1 purported to justify the said estimate of Rs. 75,000/- inter alia on the ground that the said sum of Rs. 75,000/- also included the cost of defending another suit in this Hon'ble Court as a mortgagee. Since this was never the case of the respondent No.1 in the Court below and since observations in connection with this aspect of the mater which was raised for the first time by the respondent No.1 in the Appeal, it has become necessary to mention a few facts in connection with the said other suit referred to in the judgment being suit No.207 of 1955.'
The statements contained in the above passage do not present a correct perspective is as set out by us in our judgment. All this arose merely because the learned counsel for the appellant dubbed the amount of Rs. 75,000/- as 'exorbitant' and as it was so argued with some persistence that this Court, in order not to do injustice to a mortgagor, investigated that aspect, although it was as stated in our judgment, not necessary to do so and the appellant was at fault in not having raised any such contention in the trail Court itself.
10. We will now refer to a statement made towards the end of paragraph 6 of the petition that the affidavit in reply 'was tendered by Shri Zaiwala, the petitioner's Counsel, during the course of arguments. However the Hon'ble Court considered it unnecessary to take it on record.' Now it was Mr.Dhanuka who opened the appeal; thereafter Mr.Thakkar advanced his arguments on behalf of the first respondent; and it was only thereafter that Mr.Dhanuka, addressed the Court on certain points argued by Mr.Thakkar. The arguments of Mr.Dhanuka and Mr.Thakkar had been spread over a number of days and at the tail-end of the case Mr.Zaiwala addressed the Court only for about a couple of hours or so and it was during that tail-end of the case that the affidavit in rejoinder was tendered. Till then no reference had been made to that affidavit. If an affidavit in rejoinder had remained to be filed, we are compelled to say that it was the duty of counsel to have tendered it at an earlier stage of the hearing of the appeal. We do not recollect exactly on what ground that affidavit was not taken on filed. But in view of the above statement made in the petition, we are constrained to point out that the reason why the affidavit was not taken on file as stated in the above passage may or may not be correct. The fact that such a statement was made leads to an assumption that some use is intended to be made hereafter of that statement in the petition and it is only because of that reason that we are constrained to make our above observations.
11. As regards the statements contained in ground No.3 (iii) the facts stated therein were never brought to our notice during the hearing of the appeal.
12. Appeal allowed.