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Sastri Yagnapurushdasji Vs. Muldas Bhuradas Vaishya - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSupreme Court Civil Application Nos. 3140 and 3456 of 1958
Judge
Reported in(1959)61BOMLR1016
AppellantSastri Yagnapurushdasji
RespondentMuldas Bhuradas Vaishya
Excerpt:
.....to certificate under article 133;under section 110 of the civil procedure code, 1908, read with article 133(1) of the constitution of india, a party would be entitled to a certificate under article 133(1)(b) of the constitution provided his case falls under that clause even though the amount or value of the subject-matter in dispute in the court of first instance is less than twenty thousand supees.;govindbhai v. dahyabhai (1936) 39 bom. l.r. 332, subramania ayyar v. sellammal (1915) i.l.r. 39 mad. 843 and amarsingh v. karnail kaur [1956] a.i.r. rajasthan 169, referred to. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised..........of the value of the subject-matter of the dispute in the court of the first instance and still in dispute on appeal was and is less than 20,000 rupees and the judgment and decree involve directly or indirectly claim or question respecting property of the value of over rs. 20,000 and that the case is a fit one for appeal to the supreme court. the learned judges in appeal have reversed the judgment and decree of the trial court and (the court) should be pleased to give the leave on that ground also.paragraph 20(a) states:that your lordships' petitioners therefore pray that your lordships he pleased to grant them leave to appeal to the supreme court.it is undoubtedly true that the petition is not happily worded and we allowed the petitioners to clarify the petition and correct clerical.....
Judgment:

Gokhale, J.

1. This is an application by original plaintiffs Nos. 1, 2, 4 and 5 for leave to appeal to the Supreme Court against the decision of this Court in State of Bombay v. Shastri Yagna Purushadasji (1958) 61 Bom. L.R. 700, dismissing the petitioner's suit. The suit was filed for a declaration inter alia that the Swaminarayan Temple of Shree Nar Narayan Dev at Ahmedabad and all the temples subordinate thereto were not temples within the meaning of the Bombay Harijan Temple Entry Act, 1947 (Bom. Act XXXV of 1947) as amended by Bombay Act LXXVII of 1948, and to restrain defendant No. 1 and other non-Satsangi Harijans from entering the said temples. The trial Court had granted the said declaration and injunction, and against that decision the State of Bombay as well as original defendant No. 1 had filed First Appeal No. 107 of 1952. When the appeal was heard by this Court on March 8, 1957, the appeal, so far as it was filed by the State of Bombay, came to be dismissed, and by a further order dated March 25, 1957, there was a remand to the trial Court to record a finding whether the Swaminarayan Temple at Ahmedabad and the temples subordinate thereto were Hindu religious institutions within the meaning of Article 25(2)(b) of the Constitution. The trial Court returned an affirmative finding on this issue and the appeal was then argued on the merits. Two points were raised on behalf of the appellants in the appeal: (1) that the Swaminarayan Sampra-day was a religion different from the Hindu religion, and (2) even assuming that the followers of the Sampraday were Hindus by religion and the suit temples were Hindu religious institutions, within the meaning of the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which repealed the Bombay Harijan Temple Entry Act, 1947, that Act would be ultra vires Article 25(1) of the Constitution of India and, therefore, plaintiffs would be entitled to the reliefs claimed by them. These contentions were negatived and the appeal was allowed) the decree of the trial Court was set aside and the plaintiffs' suit was dismissed with costs throughout. That is why the petitioners have filed this application for leave to appeal to the Supreme Court.

2. On behalf of the petitioners it is prayed that the Court should grant them leave both under Article 133(1)(b) as well as (c)-of the Constitution of India, in that the judgment and decree of this Court involve directly or indirectly one claim or question respecting property of the value of twenty thousand rupees or upwards and also that the case is a fit one for appeal to the Supreme Court.

3. On behalf of the opponents, on the other hand, it was contended, in the first instance, that the petition for leave to appeal was very vague and was not properly worded so as to cover grant of leave under Article 133(i)(6). As against this, it was argued on behalf of the petitioners that the claim for such a certificate would be covered by sub-para. (18) to para. 18 of the petition as well as para. 20(a) of the petition. Under sub-para. (18) to para. 18 of the petition it is stated:

That the amount of the value of the subject-matter of the dispute in the Court of the first instance and still in dispute on appeal was and is less than 20,000 rupees and the judgment and decree involve directly or indirectly claim or question respecting property of the value of over Rs. 20,000 and that the case is a fit one for appeal to the Supreme Court. The learned Judges in appeal have reversed the judgment and decree of the trial Court and (the Court) should be pleased to give the leave on that ground also.

Paragraph 20(a) states:

That your Lordships' petitioners therefore pray that your Lordships he pleased to grant them leave to appeal to the Supreme Court.

It is undoubtedly true that the petition is not happily worded and we allowed the petitioners to clarify the petition and correct clerical mistakes therein which they have done by filing an affidavit dated January 23, 1959. It was faintly contended on behalf of the opponents that without an application for amendment of the petition itself this clarification should not be allowed. But in view of the fact that the wording of sub-para. (18) of para. 18 of the petition would cover a prayer for a certificate under Article 133(i)(6) of the Constitution, we have allowed the petitioners to make the necessary clarification and corrections by means of an affidavit.

4. Then it was further contended that the petitioners would not be entitled to get leave under Article 133(1)(b) of the Constitution because the case does not satisfy the requirements of Section 110 of the Civil Procedure Code. It is pointed out that the plaintiffs had originally valued their claim in the plaint at Rs. 5,250 and in the First Appeal also the said valuation was retained both for the purposes of Court-fees as well as advocate's fees. It is not disputed even by the appellants, as is clear from sub-para. (18) of para. 18 of the petition, that the amount or value of the subject-matter of the dispute in the Court of first instance and in the First Appeal was less than Rs. 20,000. Mr. A.D. Desai argues that if that be so, the requirements of para. 2 of Section 110 of the Civil Procedure Code will not be satisfied. Now, Section 110 of the Civil Procedure Code reads as follows:-

In each of the cases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards.

or the judgment, decree or final order must involve directly or indirectly, some claim or question to or respecting property of like amount or value,

and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.

In the present case, this Court has allowed the appeal and set aside the decree of the trial Court and, therefore, para. 3 of Section 110 Would not apply. But Mr. A.D. Desai contends that para. 2 of Section 110 cannot be read independently of the first part of para. 1 of Section 110, and Mr. Desai's contention is that even in the case of para. 2 of Section 110 the condition that the amount or value of the subject-matter in dispute in the Court of first instance must be Rs. 20,000 or upwards must be satisfied. In support of his argument, he has referred us to the case of Govindbhai v. Dahyabhai (1936) 39 Bom. L.R. 332 where Mr. Justice Broomfield expressed his agreement with the view of the Madras High Court in Subramania Ayyar v. Sellammal I.L.R. (1915) Mad. 843 where it was held that the second para. of Section 110 applied only to cases which involved some claim or question to or respecting property, additional to or other than the actual subject-matter in dispute in appeal and to be taken into account therewith in making up the appealable value. Now, it has to be observed, in the first instance, that in the Bombay case the plaintiffs had claimed a declaration respecting certain property and it was observed by Mr. Justice Broomfield that the declaration could only be valued on a notional basis and the plaintiff was not estopped nor barred from saying that the value of the subject-matter of the suit and appeal was Es. 10,000 or over within the meaning of Section 110 as it stood then, and therefore the plaintiff was held entitled to a certificate to appeal to the Privy Council under Section 110, para. 1, of the Civil Procedure Code. Secondly, since the enactment of the Constitution of India, both Section 109 and Section 110 of the Civil Procedure Code have been amended and the first para, of Section 109 states that an appeal shall lie to the Supreme Court under Clauses (a), (b) and (c) of that section, subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India. It is clear, therefore, that Section 110 which refers to Clauses (a) and (b) of Section 109 must be read subject to the provisions in Chapter IV of Part V of the Constitution. Now, Article 133(1) of the Constitution which is in Chapter IV of Part V reads as follows:--

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject-matter of the dispute in the Court of first, instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.

5. Now, the wording of the three clauses of Article 133(2) would indicate that these are independent and self-contained clauses. Each of these clauses starts with the conjunction 'that' and Clauses (a) and (b) end with the conjunction 'or' which would be indicative of their independence inter se. Clause (b) of Article 133(1), which corresponds to the second para, of Section 110 of the Civil Procedure Code, cannot therefore be read as an alternative to the latter part of Clause (a) referring to the amount or value of the subject-matter still in dispute on appeal. In view of the wording of this article, therefore, subject to which ss, 109 and 110 of the Civil Procedure Code will have to be read, in our view, the second para, of Section 110 of the Civil Procedure Code also cannot be construed as an alternative to the latter part of the first para, of that section. In our judgment, reading Section 110 of the Civil Procedure Code with Article 133(1) of the Constitution, a party would be entitled to a certificate under Article 133(2)(I) of the Constitution provided his case falls under that clause even though the amount or value of the subject-matter in dispute in the Court of first instance is less than twenty thousand rupees. In this connection, Mr. N.K. Desai has drawn our attention to a case of the Rajasthan High Court, Amarsingh v. Karnail Kaur , where a similar view has been taken as to the construction of para. 2 of Section 110 of the Civil Procedure Code. The argument of Mr. A.D. Desai, therefore, that the petitioners are not entitled to a certificate under Article 133(2)(i) on the ground that admittedly the subject-matter in dispute in the Court of first instance and still in dispute on appeal was and is less than Rs. 20,000 cannot be accepted.

6. Then it is contended by Mr. A.D. Desai that the judgment and decree of this Court do not involve directly or indirectly some claim or question respecting any property. Mr. Desai contends that the principal question argued in the appeal was whether the Swaminarayan Temples were Hindu religious institutions within the meaning of the Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, which repealed the Harijan Temple Entry Act, 1947, and that this does not involve any claim or question to or respecting any property. We are not prepared to accept this argument. The suit was instituted by the plaintiffs because non-Satsangi Harijans wanted entry into these temples. It is true that the questions involved in the appeal do not affect the ownership or management of these temples. But, that in our view, cannot mean that the question involved is not in respect of any property. The judgment of this Court has taken the view that the Swaminarayan Temples are Hindu religious institutions and has negatived the claim of the petitioners to obtain a declaration and injunction which would have enabled them to prevent effectively the entry of non-Satsangi Harijans into these temples. It does, therefore, indirectly involve a question respecting property.

7. Lastly, it was faintly urged that there was no evidence on the record to show what the value of these temples would be. We gave an opportunity to the petitioners to file an affidavit on this point and the affidavit discloses that the value of the Nar Narayan Deo Temple at Ahmedabad alone is more than 25 lakhs and that of the 14 big temples of the northern diocese and other smaller temples would be more than a crore of rupees. In the affidavit in reply, the opponents have vaguely stated that this valuation is not correct. We were prepared to give Mr. A.D. Desai's client an opportunity to challenge the valuation by referring the matter to the trial Court. But it has been frankly and, in our opinion, rightly conceded that in view of the vague statement in the affidavit in reply that the valuation was not correct, it would be open to us to accept the valuation made in the affidavit filed by the petitioners on this point. As we have already stated as the judgment and decree of this Court has set aside the decree of the trial Court, the last para, of Section 110 of the Civil Procedure Code that the appeal must involve some substantial question of law would not be applicable, nor will a certificate to that effect of this Court be necessary under the last portion of Article 133(1) of the Constitution. In our opinion, therefore, the, petitioners will be entitled to a certificate under Article 133(1)(5) of the Constitution.

8. The petitioners have also prayed for a certificate under Article 133(1)(c) of the Constitution that the case is a fit one for appeal to the Supreme Court. It is contended by Mr. A.D. Desai that the petitioners would not be entitled to such a certificate. According to him, no substantial question of law arises, as this Court has decided the question as to whether the followers of Swaminarayan sect are Hindus by religion on a consideration of oral and other evidence on the record. As regards the other question whether Bombay Act XXXI of 1956 would be ultra vires of Article 25(1) of the Constitution, Mr. Desai says that that question would be governed by the decision of the Supreme Court, Venkataramana Devaru v. State of Mysore : [1958]1SCR895 . Now, the circumstances under which a certificate of fitness can be granted are fairly well settled. A mere substantial question of law arising between the parties is not sufficient. In Radhakrishna Ayyar v. Swaminatha Ayyar , 23 Bom. L.R. 718, it was observed (p. 33):.it is plain that there may be certain cases in which it is impossible to define in money value the exact character of the 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 Sub-section (c) of Section 109 of the Civil Procedure Code contemplated such cases. This observation of the Privy Council has been never treated as exhaustive but merely illustrative. In Hirjibhai v. Jamshedji (1913) 15 Bom. L.R. 1021 this Court took the view that what was contemplated in Clause (c) of Section 109 of the Civil Procedure Code was a class of cases in which there may be involved questions of public importance, or which may be important precedents governing numerous other eases, or in which, while the right in dispute is not exactly measurable in terms of money, it is of great public or private importance; and a mention was made in this connection of the case of the Udwada Fire Temple, Navroji v. Kharsedji (1904) 6 Bom. L.R. 286, in which Jenkins C.J. had granted leave to appeal on the ground that the point in dispute, though not measurable by money, was of considerable importance because it related to the extent of control acquired by one who had built the Fire Temple. In the present case, the question involved is undoubtedly of very great importance from the point of view of the Swaminarayan Sampraday which claims lacs of adherents and on whose behalf it was contended in appeal before this Court that they are not Hindus by religion. The question is also of importance from the point of view of non-Satsangi Harijans represented by the contesting defendants, who claim a right of entry into these temples. Besides, the decision as to whether the followers of Swaminarayan Sampraday are Hindus by religion depends not merely on appreciation of oral evidence but also on the interpretation of some of the sacred scriptures of the sect and other evidence on the record. In our view, therefore, the case would be a fit one for appeal to the Supreme Court even under Section 109(c) of the Civil Procedure Code read with Article 133(1)(c) of the Constitution.

9. The result is that a certificate will issue in favour of the petitioners both under Article 133(1)(b) and (c) of the Constitution. Costs will be costs in appeal.


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