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In Re: Petition for Leave to Appeal to the Supreme Court - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberPetition made in Appeal No. 155 of 1970
Judge
Reported in(1972)74BOMLR522a
AppellantIn Re: Petition for Leave to Appeal to the Supreme Court
Excerpt:
.....for leave to appeal under article 133(1) to formulate clearly questions of law and how those are substantial questions of law.;unless a petition for leave to appeal to the supreme court under article 133(1) of the constitution of india 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.;where the judgment of the high court involves an interpretation of rule 500-a of the rules of the bombay high court applicable on its original side, which would determine the question whether, when an order is made grunting to a mortgage decree-holder liberty to bid and set off and his bid is accepted, the..........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.....
Judgment:

1. So far as the application for a Certificate for leave to appeal to the Supreme Court under Article 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 feeing 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 Article 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, Article 138(1) requires that it must be a substantial question of law and the petition for a Certificate must set out how what 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 out 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 that he can set off his purchase price to the extent available ?even against the initial deposit of 25 per cent. of the price or whether an express order to that effect is necessary. As this interpretation would affect all such sales by this High Court, the interpretation is of importance not merely to the present petitioners but also to all mortgage 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 Article 133(1)(a) of the Constitution and we farther certify that the said question of law 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.


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