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Governor General in Council Now (Governor General of India) Vs. Jallan and Sons Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H370
AppellantGovernor General in Council Now (Governor General of India)
RespondentJallan and Sons Ltd.
Cases Referred and Uday Chand Pannalal v. P.E. Guzdar and Co. and
Excerpt:
.....in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - jallan and sons, limited, delhi, duly endorsed in their favour. the conditions that regulate the granting of certificates for leave to appeal have been clearly stated in the cases referred to by counsel for the respondent, namely, banarsi prasad v. there are questions, as for example, those relating to religious rites and ceremonies, to caste and family rights, or such..........sutlej cotton mills, okara, consigned 15 bales of cotton dhotis from okara to delhi and sent the railway receipt to messrs. jallan and sons, limited, delhi, duly endorsed in their favour. the railway receipt was presented by messrs. jallan and sons, limited, to the railway at delhi on 22nd and 23rd june 1948 and they were given delivery of 1676 pairs of dhotis. the rest of the consignment, consisting of 725 pairs of dhotis, had got damaged during, transit and accordingly messrs. jallan and sons, limited, refused to accept them. correspondence ensued between messrs. jallan and sons, limited, on the one side and the railway on the other side resulting in a notice under section 80, civil p.c. by messrs. jallan and sons, limited, delhi, upon the appropriate railway authority. the suit out.....
Judgment:

Harnam Singh, J.

1. This is an application under Order 45, Rule 2, Civil P.C., as amended by Federal Court (Enlargement of Jurisdiction Act, 1948, for a certificate for leave to appeal to the Federal Court of India from an order passed by a Division Bench of this Court in Regular First Appeal No. 474 of 1945. It is conceded that the cass does not fall within the purview of Clauses (a) and (b) of Section 109 and Section 110, Civil P.C., It is, however, maintained that in view of the provisions of Clause (c) of Section 109 the case should be certified to be a fit one for appeal to the Federal Court of India.

2. The facts giving rise to the present application may be briefly stated as follows: On 20th May 1943 the Sutlej Cotton Mills, Okara, consigned 15 bales of cotton dhotis from Okara to Delhi and sent the railway receipt to Messrs. Jallan and Sons, Limited, Delhi, duly endorsed in their favour. The railway receipt was presented by Messrs. Jallan and Sons, Limited, to the railway at Delhi on 22nd and 23rd June 1948 and they were given delivery of 1676 pairs of dhotis. The rest of the consignment, consisting of 725 pairs of dhotis, had got damaged during, transit and accordingly Messrs. Jallan and Sons, Limited, refused to accept them. Correspondence ensued between Messrs. Jallan and Sons, Limited, on the one side and the railway on the other side resulting in a notice under Section 80, Civil P.C. by Messrs. Jallan and Sons, Limited, Delhi, upon the appropriate railway authority. The suit out of which the present proceedings have arisen was instituted on 80th May 1944 for recovery of Rs. 7,500 on account of depredation and damages.

3. The defendants resisted the suit on merits as also on technical grounds. The technical objections were that no proper notice had been given and the plaintiffs being only the endorsees of the railway receipt could not maintain the action. The trial Court found that the plaintiffs had no soons standi to institute the suit and in the result the suit was dismissed with costs.

4. Messrs. Jallan and Sons, Limited, Delhi, appealed against the decree of the trial Court and on 27th September 1948 the Court of appeal found that Messrs. Jallan and Sons, Limited Delhi, being the endorsees of the railway receipt had the right to maintain the suit.

5. It was further found that the intention of the Sutlej Cotton Mills while endorsing the railway receipt in favour of the plaintiffs could not have been merely to enable them to take delivery of the goods but to give them an interest of substantial nature in the goods and for this reason also the plaintiffs' right to sue could not be denied. The Court of appeal also found that it was proved by evidence given at the trial that the plaintiffs' possession after they had taken delivery of the goods from the railway was in their own right and they were entitled to sell them as owners.

6. Counsel contends that the case raises a substantial question of law, namely, whether an endorsee of a railway receipt has right to maintain the suit.

7. Now, the scope of Section 109(c), Civil P.C., formed the subject-matter of consideration in Radha Krishna Aiyar v. Swaminatha Aiyar A.I.R.1921 P.C.25, where the following observations occur:

The conditions that regulate the granting of certificates for leave to appeal have been clearly stated in the cases referred to by counsel for the respondent, namely, Banarsi Prasad v. Kashi Krishen Narain 28 I. A. 11 and Radha Krishna Das v. Rai Krishanchand 28 I. A.182. It is not necessary to examine them again, for the principle which they establish is plain and cannot be questioned. That principle is this: that as an initial condition to appeal to His Majesty in Council, it is essential that the petitioners should satisfy the Court that the subject-matter of the suit is Rs. 10,000 and in addition that in certain cases there should be added some substantial question of law. This does not cover the whole grounds of appeal, because 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 rites 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. Sub-section (c) of Section 109, Civil P.C., contemplates that such a state of things exists, and, Rule 3 of Order 45, regulates the procedure.

8. Again in Udoy Ghand Parma Lal v. P.E. Guzdar and Co. , their Lordships of the Privy Council made the following observations in the concluding portion of their judgment:

Their Lordships think that this (claim of Rs. 81,000) is not really consequential on the present decree and too remote to be entitled to the description of being property indirectly involved in the issue of this suit. It must always be kept in view that no real mischief can arise from not allowing a very wide construction of Section 110, because such cases, if worthy of being tried by a higher tribunal, can always be dealt with under Sub-section (c) of Section 109, Civil P.C.

9. The sole question, therefore, for determination is whether the case involves a question of great general importance within the meaning of the rule laid down by their Lordships of the Privy Council in Radha Krishna Aiyar v. Swaminatha Aiyar A.I.R.1921 P.C.25 and Udoy Chand Parma Lal v. P.E. Guzdar & Co. .

10. As stated above, the judgment in Regular First Appeal No. 474 of 1945 proceeds inter alia upon the finding that the intention of the Sutlej Cotton Mills while endorsing the receipt in the plaintiffs' favour could not have been merely to enable them to take delivery of the goods but to give them an interest of substantial nature and that Messrs. Jallan and Sons, Limited, Delhi, were entitled to sell the goods as owners on taking delivery of the goods from the railway. That being so, 'the case is concluded by findings of fact and does not come within the meaning of the rule laid down by their Lordships of the Privy Council.

11. Counsel contends, as stated above, that the case involves a substantial question of law, namely, whether an endorsee of a railway receipt has right to maintain the suit. That is so, but even on that point there has been no serious divergence of opinion in the High Courts in this country as pointed out in the judgment in question. In any case, there is ample authority that a case cannot be certified as a fit case for appeal on the mere ground that it raises a substantial question of law. In Babu Govind Dass and Anr. v. Mt. Indravati and Ors. : AIR1940All38 Iqbal Ahmad and Ismail, JJ. said:

It may safely be laid down that the discretion vested in this Court under Clause (c) of Section 109 is to be sparingly exercised and that a case cannot be certified as a fit one for appeal on the mere ground that it raises a substantial question of law.

12. For all these reasons, I hold that the case does not involve a question of great general importance within the meaning of the rule laid down in Radha Krishna Aiyar v. Swaminatha Aiyar A.I.R.1921 P.C.25 and Uday Chand Pannalal v. P.E. Guzdar and Co. and that there is no justification for granting the applicants a certificate for leave to appeal to the Federal Court of India. The application fails and is dismissed with costs.

Bhandari, J.

I agree.


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