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Mst. Gulab Bai and anr. Vs. Mt. Manphool Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appln. No. 5 of 1952
Judge
Reported inAIR1953Raj42
ActsConstitution of India - Article 133(1); Code of Civil Procedure (CPC) , 1908 - Sections 109
AppellantMst. Gulab Bai and anr.
RespondentMt. Manphool Bai
Appellant Advocate D.M. Bhandari and; B.B. Sharma, Advs.
Respondent Advocate M.B. Bhargava and; B.K. Bhargava, Advs.
Cases ReferredMahomed Mahrabkhan v. Dur Mohd Khan
Excerpt:
.....example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance'.the argument is that their lordships were laying down, when they used these words, that no certificate should be granted under what is now section 109(c) of the code of civil procedure, if the point in dispute is measurable in money, and is below the limit of rs. 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 the companies, as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money. 18. it is well settled that a mere existence of a substantial question of law is not..........been referred to this full bench for decision--1. whether in a case which involves a question of great public or private importance certificate for leave to appeal under article 133(1)(c) of the constitution of india and section 109(c) of the civil procedure code can be given, even though the valuation is less than that prescribed by clauses (a) and (b) of article 133(1) of the constitution of india and section 110 of the civil procedure code and the point in dispute is measurable by money?2. whether a decision on the point of res judi-cata when there are different views of different high courts on the point can be said to raise questions of great public and private importance?2. the facts which have led to this reference, may be briefly narrated. a suit was filed by man-phul bai.....
Judgment:

Wanchoo, C.J.

1. The following two questions have been referred to this Full Bench for decision--

1. Whether in a case which involves a question of great public or private importance certificate for leave to appeal under Article 133(1)(c) of the Constitution of India and Section 109(c) of the Civil Procedure Code can be given, even though the valuation is less than that prescribed by Clauses (a) and (b) of Article 133(1) of the Constitution of India and Section 110 of the Civil Procedure Code and the point in dispute is measurable by money?

2. Whether a decision on the point of res judi-cata when there are different views of different High Courts on the point can be said to raise questions of great public and private importance?

2. The facts which have led to this reference, may be briefly narrated. A suit was filed by Man-phul Bai against Laduram and Gulab Bai in the court of the Civil Judge, Jaipur City, for ejectment and arrears of rent on the basis of a rent note executed by Laduram. Gulab Bai was made a party on the ground that she claimed proprietary rights in the house, but no relief was asked against her. The suit was contested on various grounds and was decreed by the trial court. There was an appeal to the District Judge which was allowed on the ground of res judicata. Thereupon, there was a second appeal to this court, and it was contended that the decision of the District Judge on the question of res judicata was in-correct. The second appeal was allowed by a Bench of this court, and a decree was passed in favour of Manphul Bai for arrears of rent & ejectment against Laduram only. The dispute as to ownership between Manphul Bai and Gulab Bai was left undecided by this court.

3. Thereupon, there was an application by Gulab Bai and Laduram for leave to appeal to the Supreme Court. It may be mentioned that the valuation of the suit as well as of the appeal before the District Judge, and of the second appeal in this court was only Rs. 2,400/- The application for leave to appeal came before a Bench of this court, and it was held that the case was not covered by Article 133(1) (a) and (b) of the Constitution. It was, however, contended before that Bench that, the case was covered by Article 133(1)(c) of the Constitution, which corresponded to section 109(c) of the Civil Procedure Code, and leave should therefore be granted under those provisions. Thereupon, these two questions, which arise for determination, have been referred to a Full Bench for reply.

4. We now propose to address ourselves to the first question.

5. The argument on behalf of the opposite party is that Article 133(1)(c) of the Constitution does not apply to cases where the point in dispute is measurable in money, and the amount is less than the limits prescribed under Article 133(1) (a) & (b) of the Constitution. It is further urged that this is irrespective of the fact that the question involved might be of great public or private importance. In other words, the contention of the opposite party is that once the point in dispute is measurable in terms of money, and the amount is less than Rs. 20,000/-, leave cannot be granted under Article 133(1)(c), even though the question involved may be of great public or private importance. On the other hand, the contention on behalf of the applicants is that Article 133(1)(c) is very wide in terms and gives powers to the High Court to certify any case as fit lor appeal to the Supreme Court, and the fact that the point in dispute is measurable in terms of money and is less than Rs. 20,000/-in valuation is immaterial.

6. In order to decide which of these two views is correct we may refer to the words of Article 133(1)(c) itself which are these: --(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) .....

(b) .....

(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'.

7. A bare perusal of the words of this Article clearly shows that they are of very wide import, and there are no restrictions in the Article itself on the power of the High Court to certify any case fit for appeal to the Supreme Court. Undoubtedly, the High Courts have laid down certain principles which they will follow when certifying a case fit for appeal to the Supreme Court, (or the Privy Council when it was in existence). We have, therefore, to see whether any such principle, as is contended for on behalf of the opposite party, was ever laid down by the High Courts, or by the Privy Council in this behalf. The principle that is contended for is that where the point in dispute is measurable in money and is less than the minimum limit which is Rs. 20,000/- for our purpose, the High Court cannot certify a case as fit for appeal whatever may be the importance of the question involved. Put in this form we must say that there is no authority in support of this principle. So far as the words of the Article itself are concerned, we have already said that they are very wide and no such restriction appears in them. We propose therefore to examine the cases cited on behalf of the opposite party to see if they lay down tiie principle wnich is being contended for.

8. The first and the most important case on the point is -- 'Banarsi Prasad v. Kashi Krishna Narain', 23 All. 227 (P.C.). That case was under the Civil Procedure Code of 1617, and dealing with section 595 of that Code, which corresponded to section 109 of the present code. Their Lordships of the Privy Council observed as follows at page 231:--

'It is true that by sections 595 and 600 an appeal may be granted if the High Court certifies that the case is fit for appeal 'otherwise', i.e. when not meeting the conditions of section 596. That is clearly intended to meet special cases, such, for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance'.

The argument is that Their Lordships were laying down, when they used these words, that no certificate should be granted under what is now section 109(c) of the Code of Civil Procedure, if the point in dispute is measurable in money, and is below the limit of Rs. 10,000/- which was then in force. We must say that the words used by Their Lordships are not capable of this interpretation. Obviously Their Lordships were only giving an example where (what is now) section 109(c) could be used. They were not, in our opinion, laying down exhaustively what were the kinds of cases in which only certificate could be granted under Section 109(c) C.P.C. This is clear particularly from the words 'such for example' used in the passage.

9. The next case, which was relied upon, is --'Radha Krishna Aiyar v. Swaminatha Aiyar', AIR 1921 P.C. 25, wherein observations were made by Their Lordships in connection with section 109(c) at page 26 as follows: --

'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 the 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 of the Civil Procedure Code contemplates that such a state of things exists and Rule 3 of Order 45 regulates the procedure'.

Here again in our opinion, these words are not capable of the interpretation that it is 'sine qua non' for grant of a certificate under Section 109(c) C. P. C. that the point in dispute should not be measurable in terms of money. Their Lordships, in our opinion, were only illustrating what kind of cases could be certified under section 109(c), and were not laying down any condition of the kind contended for by the opposite party.

10. As against this, the petitioners rely on two other cases also of the Privy Council. The first of these is -- 'Udoychand Pannalal v. P. E. Guzdar & Co.', AIR 1925 P. C. 159. In that case their Lordships were mainly concerned with the interpretation of section 110 of the Code of Civil Procedure, and held that a wide construction should not be put on the words of that section, and went on to observe as follows at page 160:

'It must always be kept in view that no real mischief can arise from not allowing a very wide construction of the section because such cases, if worthy of being tried by a higher tribunal, can always be dealt with under Sub-section (c) of Section 109'.

The case before Their Lordships, in which theseobservations were made was measurable in termsof money, and was valued at Rs. 3,000/-. Obviouslytherefore these observations support the view we have taken that the observations in the earlier two cases were of an illustrative nature.

11. The next case is -- 'Commissioner of Income-tax, C. P. and Berar v. S. M. Chitnavis', AIR 1932 P. C. 178. That was a case under the Income-Tax Act, and the valuation was below Rs. 8,000 /-. The case was certified by the High Court under section 109(c) of the Code of Civil Procedure as a question of great public importance was involved in it. This case is cited to show that the point in dispute was measurable in terms of money, and the valuation was below Rs. 8,000/- and still the case was certified under section 109(c) only on the ground of a question of great public importance being involved. This case supports the view that the fact that the point in dispute is measurable in terms of money and the amount is less than Rs. 10,000/- or Rs. 20,000/- as the case may be will not disentitle a person from a certificate under section 109(c) C. P. C., if the question involved is of great public or private importance.

12. Turning now to the cases of the various High Courts, reference may first be made to -- 'Sheo Pujan v. Bhagwat Prasad Singh', AIR 1933 All. 4. This case, in our opinion does not lay down that before leave can be granted under Section 109(c) C. P. C., the point in dispute should not be measurable by money, even though it involves a question of great public or private importance. After referring to the cases of Banarsi Prasad v. Kashi Krishna', (23 All. 227 P. C.) and -- 'Radha Krishna. Ayyar v. Swaminatha Ayyar', (AIR 1921 P. C. 25) mentioned above, the learned Judges went on to say that the observations made in these two cases were only illustrative and not exhaustive, and this, if we may say so with great respect, is the view that we also take of these two cases. Reference is also made in this case to an earlier Madras case --'Kesava Mudaliar v. Govindachariar', AIR 1924 Mad. 231, with approval, and that case laid down law in these terms:

'What was contemplated by Section 109(c) was a classof cases in which there might be involved ques- tions of public importance, or which might beimportant precedents governing numerous othercases, or, in which, while the right in dispute wasnot expressly measurable in money, it was ofgreat public or private importance'.

This quotation supports the view we have takennamely, the fact whether the point in dispute ismeasurable in money or otherwise is only one ofthe factors to be taken into consideration whendeciding whether to grant a certificate under Section 109(c), and that the fact that a certain point may bemeasurable in money and may be valued at lessthan the minimum is not enough to refuse a certificate, if there are other reasons which make itnecessary that a certificate should be granted.

Lastly we may refer to -- 'Mt. Shankri v. Milkha Singh', AIR 1947 Lah. 304 (FB) which is a five Judges Full Bench case. The question which we have to answer was specifically raised in that case & it was held that Section 109(c) was not limited to cases where the money value of the subject matter in dispute cannot be ascertained, but also applied where the money value has been definitely ascertained, but the case involves a question of great general importance. If we may say so with respect, we agree with this view. No case has been cited on behalf of the opposite party, which goes counter to this view.

13. Our answer therefore to the first question is that if a case involves a question of great public or private importance, certificate for leave to appeal under Article 133(1)(c) of the Constitution, and Section 109(c) of the Code of Civil Procedure can be given, even though the valuation is less than that prescribed by Clauses (a) and (b) of Article 133(1) of the Constitution of India and section 110 of the Civil procedure Code, and the point in dispute is measur-able by money.

14. We now come to the second question with respect to res judicata. We are asked whether a decision on a point of res judicata when there are different views of different High Courts on the point can be said to raise questions of great public and private importance. It is further difficult to answer the question in the general form in which it has been put, but we take it that the general form of the question is controlled by the particular point of res judicata which has arisen in the present case. Generally speaking, a decision on the point of res judicata raises questions which can hardly be oi great public or private importance; but there may be a decision on a point of res judicata, which may raise questions of great public or private importance, as is illustrated by the point which has arisen in the present case.

15. The exact point of res judicata, which has arisen in the present case, is this. The present suit by Manphul Bai was filed in the court of the Civil Judge as arrears of rent amounted to Rs. 1,800/-, and the valuation for purposes of ejectment was Rs. 600/- total Rs. 2400. She had filed the earlier suit in the court of the Munsif also for arrears of rent and ejectment, but as the arrears in that case were for a short period, the valuation was less than Rs. 2,000/- and the suit was there-fore cognizable by the Munsif's court. That suit was dismissed for reasons into which it is not necessary to go at this stage. The present applicants thereupon raised the plea that the decision in that suit was res judicata, and the second suit was barred. The contention of the present opposite party, on the other hand, was that as the present suit was not cognizable by the Munsif, the decision of the Munsif was not res judicata. This contention of the opposite party prevailed in second appeal. The exact point that required determination was this, where the second suit was filed in a court of higher jurisdiction simply because the party allowed arrears of rent to accumulate and could not be filed in the court of lower jurisdiction where the first suit was filed because the arrears at that time were smaller was it open to the party by accumulating arrears to get out of the principle of res judicata, which would otherwise have applied if the second suit had been filed shortly after the first when the arrears had not become too large to necessitate the filing of the second suit in the court of higher jurisdiction. There is difference of opinion in the various High Courts on this general question of res judicata which arises in this case. We therefore take the second question to refer to a case where the question of res judicata is of the kind mentioned above and about which there is divergence of opinion among various High Courts, as is the case here.

16. In order to answer this question, we may refer to certain authorities which lay down principles for determining when the point in dispute can be said to be of general public or private importance.

17. The first case is -- 'Albright v. Hydro-electric Power Commission of Ontario', (1923) A. C. 167. That was a case from Canada, and Their Lordships of the Privy Council were dealing with the question of special leave, and laid down that special leave should not be granted where the decision to be appealed against does not raise a far-reaching question of law or matters of dominant Public importance.

18. It is well settled that a mere existence of a substantial question of law is not sufficient to give the High Court jurisdiction to give leave to. appeal under section 109(c) C. P. C.; the question must also be of great public or private importance. What is a question of general public or private importance would in our opinion depend on the facts of each case. But if the decision of the question is likely to form a precedent and affect numerous cases that may be a reason for holding that the question is a matter of great public importance. We may here cite certain cases as illustrations to show what have been held to be questions of great public importance.

19. The first case is -- 'Anant Ram v. Sheoraj Singh' 18 Ind. Cas. 305 (All). In this case the Allahabad High Court decided that the question whether the burden lay upon a mortgagee, who had taken a mortgage from the manager of a joint Hindu family governed by the Mitakshara law, to prove that the debt was incurred for family necessity, and whether if the debt was not so incurred, the interest of the manager of the family that is, of the mortgagor in the mortgaged property, could be sold in enforcement of the mortgage, were substantial questions of law of general importance.

20. A case involving the questions as to the necessity of registering documents giving an option of repurchase was held a fit case for appeal to Privy Council as the execution of documents with an option of repurchase was very common, and a considerable amount of litigation came before the courts in connection with them and the law on the question of necessity of registering such documents was not clear in view of conflicting decisions --'Jivangiri Guru v. Gajanan Narayan', AIR 1927 Bom 19.

21. In -- 'Sein Htaung v. V.E.A. Chettyar Firm', AIR 1936 Rang. 65 the interpretation of certain words in Section 70 of the Transfer of Property Act was held to be of great public importance, because the interpretation would not only cover the particular case, but was of general importance, or of such a nature that the decision upon it might govern numerous cases.

21a. Another instance is to be found in -- 'Commissioner of Income-Tax U. P. v. Vijayananda Gajpati', AIR 1935 All. 464. There the question was whether the income received as maintenance allowance was taxable or not. A certificate was granted on the ground that though the question had been a subject of decision in India, it had not so far been considered by Their Lordships of the Privy Council, and was an important matter affecting Public revenue, and was also a question which might frequently arise and was therefore a fit one for appeal to His Majesty in Council.

22. These illustrations show the nature of the questions which have been held to be of general public importance.

23. It has been urged on behalf of the opposite party that a mere divergence of opinion among High Courts is not enough to hold that a question is of general public importance. Reliance in this connection has been placed on -- 'Mahomed Mahrabkhan v. Dur Mohd Khan', AIR 1937 Sind 217. In that case, it was held that a fact that a Full Bench decision of one High Court differed from a Full Bench decision of another High Court was not in itself sufficient ground to make a case fit for appeal to the Privy Council under the provisions of section 109(c) of the Code of Civil Procedure.

24. It is not, in our opinion possible to lay down definitely that a mere divergence of opinion on any point among the various High Courts would be sufficient to make a question one of general importance. That matter would, in our opinion, have to be decided on the importance of the question itself, and not merely on the divergence of views of the various High Courts about it. But the fact that various High Courts have differed on a certain question may have an important bearing on arriving at the conclusion whether the question is of general public or private importance or not.

25. Applying these principles we have to see whether the particular question before us is of general public or private importance. The particular question, as we have pointed out, is whether the decision of a court of lower jurisdiction would be res judicata in the second suit which is triable only by a court of higher jurisdiction by virtue of arrears of rent having been allowed to accumulate. It appears to us that the question is of general public importance, because suits for arrears of rent and ejectment are very common, and the decision of the Supreme Court on this issue, when there is divergence of opinion among the various High Courts would settle the law, as the question has so far not been considered either by the Privy Council, or by the Supreme Court.

26. Our answer therefore to the second question is that generally speaking a point of res judicata may not be said to raise questions of great public or private importance, but that sometimes it may raise questions, and that in this particular case, the point of res judicata, which has been raised, does raise a question of great public importance.

27. Let these answers be returned to the Benchconcerned.


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