Skip to content


Mukandi Lal and ors. Vs. Hashmat-un-nissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All832; 166Ind.Cas.283
AppellantMukandi Lal and ors.
RespondentHashmat-un-nissa and ors.
Excerpt:
- - 95 and 97 to 106 of 1911, dated 4th march 1913, did not disapprove of the granting of the certificate in that case. as already pointed out, in the present case the plaintiff has failed on the ground that a certain adoption was established......necessity for the transfer at all arose and therefore the decree of the high court proceeds on one ground common to all the defendants, and the suit was instituted on the basis of one single cause of action. the valuation of one appeal was above rs. 10,000, while that of the other was less than rs. 10,000. the learned advocate for the respondents takes a preliminary objection that no leave can be granted in the latter case. strictly speaking order 45, rule 4 cannot in terms apply to this case because both the appeals have arisen out of one and the same suit and not out of two separate suits. on behalf of the respondents reliance is placed on the case in vaithilinga mudaliar v. t. somasundaram chettiar 1919 42 mad 228. but in that case the defendants who had preferred separate appeals in.....
Judgment:

Sulaiman, C.J.

1. These are two applications for leave to appeal to His Majesty in Council from the decrees of this Court in two appeals which were connected and heard together and disposed of practically by one judgment. A suit was brought by the present appellant for recovery of possession of the property on the ground that he was the next reversioner of the last male owner. The defendants were transferees from a person who was claiming to have been the adopted son of the deceased. The trial Court held that the adoption was not proved and accordingly decreed the claim. On appeal this Court held that the adoption had been proved and accordingly dismissed the whole suit. But in this Court two sets of defendants had appealed separately although the decree of the Court below was a joint one. No question of legal necessity for the transfer at all arose and therefore the decree of the High Court proceeds on one ground common to all the defendants, and the suit was instituted on the basis of one single cause of action. The valuation of one appeal was above Rs. 10,000, while that of the other was less than Rs. 10,000. The learned advocate for the respondents takes a preliminary objection that no leave can be granted in the latter case. Strictly speaking Order 45, Rule 4 cannot in terms apply to this case because both the appeals have arisen out of one and the same suit and not out of two separate suits. On behalf of the respondents reliance is placed on the case in Vaithilinga Mudaliar v. T. Somasundaram Chettiar 1919 42 Mad 228. But in that case the defendants who had preferred separate appeals in the same suit were transferees under different deeds, and accordingly the claims against the several alienees were based really on different causes of action on account of their separate deeds of transfer. The case therefore is not strictly in point.

2. There would however be jurisdiction in a fit case to grant the necessary certificate under Section 109(c). The case in Makund Sarup v. Richard Ross Skinner (1910) 5 IC 583, was somewhat similar to the present case inasmuch as two appeals were filed in this Court arising out of the same suit and were disposed of by one judgment, and the ground on which the Bench had proceeded was a common one. The value of the subject-matter in dispute in one case was in excess of Rupess 10,000, but that in the other case was less. The Court considered that when the point was a 'Common one it was a fit case for granting the certificate of fitness under Section 109(c) although the requirements of Section 110, Civil P.C., were not fulfilled. When the matter went up 'before their Lordships of the Privy Council their Lordships in their judgment in P.C. Appeals Nos. 95 and 97 to 106 of 1911, dated 4th March 1913, did not disapprove of the granting of the certificate in that case. As already pointed out, in the present case the plaintiff has failed on the ground that a certain adoption was established. This is a ground common to all the defendants. It was a mere accident that the two sets of defendants filed two separate appeals. Had they joined in one appeal there would have been no question as to the plaintiff's right to appeal in the whole case. Again if he had instituted separate suits against these sets of defendants and they had been disposed of by one common judgment, there might have been a consolidation-under Order 45, Rule 4, Civil P.C. We accordingly certify under Section 109(c) that this case is a fit one for appeal to His Majesty in Council.

3. As regards the request for the consolidation of these two appeals we have] already pointed out that Order 45, Rule 4, does not apply to this case. It appears that the Patna High Court in Har Prasad Rai v. Brij Kishen Das 1918 45 IC 551, came to the conclusion that they had an inherent power for consolidating appeals to the Privy Council for the purpose of security for costs and to save expenses. Ordinarily inherent powers exist as regards matters relating exclusively to the proceedings in the Court which exercises such powers. We find no authority for holding that we have inherent power to make orders relating, to the appeals pending before their Lordships of the Privy Council when there is no specific provision in the rule and when the relevant rule is confined to particular cases. In any case as the defendants-respondents are different, and they may engage different counsel, we sea no reason why the appellant should not be called upon to furnish security for the costs of the respondents in each of these cases separately. We accordingly refuse the prayer for consolidating the two appeals. We see no reason to allow the appellants to furnish security otherwise than in cash.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //