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Markandalal and anr. Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 9 of 1957
Judge
Reported inAIR1958MP235
ActsConstitution of India - Article 133(1)
AppellantMarkandalal and anr.
RespondentState of M.P. and ors.
Appellant AdvocateR.K. Verma, Adv.
Respondent AdvocateS.B. Sen, Adv. for Non-Applicants Nos. 1 and 2
DispositionPetition allowed
Cases ReferredAnnapurnabai v. Ruprao
Excerpt:
- - on that occasion the question framed was as follows :is an unsuccessful party entitled to appeal as of right when the judgment of the high court is not of full affirmance but varies the decree of the trial court partly, though in favour of the appealing party, when the appealing party does not dispute the decree in its favour?.....it will be noticed that valuation of the land compulsorily acquired was made at a particular rate and on certain principles. the applicants asked that some other principles and some other rate should be applied.the high court did not accept the contention of the applicants and found a rate which was between the rate granted and that asked for. in our opinion, the variation shows that the old rate was not applicable, and to that extent the judgment cannot be treated as one of affirmance.of course, if there were separate and separable claims and one of them was decreed and others disallowed, it may be possible to say, as was done in the full bench case, that the judgment in respect of the rejected claim was one of affirmance; but where certain principles have to be applied and the.....
Judgment:
ORDER

1. This is an application for leave to appeal to the Supreme Court against the decision of this Court in a laud acquisition case. It is admitted by both sides that the amount in dispute both in the Court below and on appeal to the Supreme Court is above the mark. The only question is whether the decision of the High Court can be treated as one of affirmance involving a substantial question of law.

It is admitted that there is no substantial question of law as such, because the appeal involving only the valuation of the property and no substantial point of law was either mooted or decided. The learned counsel for the applicants, however, contends that the judgment cannot be treated as one of affirmance, because it varied the decree of the Court below. The variation, however, was in favour of the applicants.

2. The question as to when a judgmentpartly modifying the lower Court's decision can be called a judgment of affirmance and when not, has been the subject-matter of great controversy in India, and, in Sitaram v. Harikisan, Misc. Civil Case No. 135 of 1954, D/- 28-11-1955 (Nag) (A), a Full Bench of this Court adverted to this difference of opinion in India. On that occasion the question framed was as follows :

'Is an unsuccessful party entitled to appeal as of right when the judgment of the High Court is not of full affirmance but varies the decree of the trial Court partly, though in favour of the appealing party, when the appealing party does not dispute the decree in its favour?'

The answer given by the Full Bench was to the following effect :

'Where the appeal is of the required valuation, the appellant cannot claim to appeal under Section 110, Code of Civil Procedure, without showing that the case involves a substantial question of law merely because the decree of the first Court has been modified by the High Court when the appellant no longer feels aggrieved with what has been the subject-matter of the modification.'

3. The dispute in India has really arisen on an interpretation of a decision of their Lordships of the Privy Council in Annapurnabai v. Ruprao, ILR 51 Col 969: (AIR 1925 PC 60) (B). There a claim for maintenance was placed at Rs. 3,000 a year. It was decreed at Rs. 800/- in the first Court but was increased to Rs. 1200/- by the appellate Court. Their Lordships hold that the judgment of the appellate Court could not be treated as one of affirmance and that the appellant had a right of appeal, which was wrongly refused by the High Court.

4. Here too we think the case comes within the rider contained in the answer of the Full Bench and the present case falls within the rule of their Lordships of the Privy Council. It will be noticed that valuation of the land compulsorily acquired was made at a particular rate and on certain principles. The applicants asked that some other principles and some other rate should be applied.

The High Court did not accept the contention of the applicants and found a rate which was between the rate granted and that asked for. In our opinion, the variation shows that the old rate was not applicable, and to that extent the judgment cannot be treated as one of affirmance.

Of course, if there were separate and separable claims and one of them was decreed and others disallowed, it may be possible to say, as was done in the Full Bench case, that the judgment in respect of the rejected claim was one of affirmance; but where certain principles have to be applied and the principles given in the Court of first instance are not the principles which are applied by the appellate Court and are not the principles which the applicant claimed, the judgment cannot be called one of affirmance. We think that thecase falls under the rule given in Annapurnabai's case (B), (supra), and within the rider in the answer of the Full Bench, The value being above the mark, we think appeal is as of right.

5. We accordingly certify the case as fit for appeal to the Supreme Court under Article 133(1), Clauses (a) and (b) of the Constitution. There shall be no order about costs.


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