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Kishorilal and ors. Vs. Ladhu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Leave to Appeal to the Supreme Court Nos. 53, 54, 59 and 60 of 71 and (SIC) and 5 of 72
Judge
Reported in1972WLN953
AppellantKishorilal and ors.
RespondentLadhu Ram and ors.
DispositionPetition dismissed
Cases ReferredFirm Kishorilal Jagannath Prasad v. Firm Murlidhar Banwarilal
Excerpt:
.....not satisfied that the judgment involved directly or indirectly some claim or question respecting property of the value of rs. 20,000/- or over.;for the purposes of consolidation having regard to the language of rule 4 of order 45 cpc it applies to those cases where the suits have been decided by a common judgment. the rule will have no application to a case of appeals disposed of by the same judgment because a common question of law arose in the cases. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant..........regarding suits nos. 157/60, 75/57 and 200/ 62 where by the legality of the obstruction on the public highway was challenged by the plaintiffs and they prayed for perpetual injunction and also for the issue of a mandatory injunction for the removal of the obstruction. the suits were decreed by the trial court. in first appeal the two district judges took divergent views but in the second appeal a single judge of this court maintained the order of the trial court. four special appeals were preferred, namely, 20/66, 21/66,29/66 and 32/66 and they were decided by the division bench together. the learned judges held that it was not open to the municipality to convert a part of the public highway into a bazar, that the bye-laws could not permit what was not permitted by the act, that the.....
Judgment:

B.P. Beri, J.

1. These 6 petitions for leave to appeal to the Supreme Court are directed against a common judgment of a Division Bench of this Court dated 21-9-71 and can be conveniently disposed of together.

2. Briefly stated the circumstances giving rise to the petitions are these. In the Dhan Mandi area of the town of Ganganagar there is a road leading from the Kotwali to the Lakkar Mandi known as Kotwali Road. At its right angle towards the west is the Dharmshala road. Both these are public roads and highways. The width of these roads is 60 feet Some 25 or 30 years before the institution of suits the Municipality of Gangangar let out substantial portion of these public roads to various persons on 'Tehbazari' basis permitting them to put up temporary wooden stalls as shops. In between the stalls and the properties of the plaintiffs in the original suits there is narrow strip of land measuring between 2 and 3 feet. The Tehbazari stalls virtually cover the properties of the plaintiffs abutting the two roads. The Rajasthan Government directed the Municipality of Ganganagar in September 1952 for the restoration of the Kotwali Road by removing these stalls. The stall-holders instituted a suit for the issue of an injunction against their impending eviction and it was dismissed in 1956. The Municipality did not take any steps to evict the stall-holders and therefor the plaintiffs instituted several suits but we are only concerned at present regarding suits Nos. 157/60, 75/57 and 200/ 62 where by the legality of the obstruction on the public highway was challenged by the plaintiffs and they prayed for perpetual injunction and also for the issue of a mandatory injunction for the removal of the obstruction. The suits were decreed by the trial court. In first appeal the two District Judges took divergent views but in the second appeal a single Judge of this Court maintained the order of the trial court. Four special appeals were preferred, namely, 20/66, 21/66,29/66 and 32/66 and they were decided by the Division Bench together. The learned Judges held that it was not open to the Municipality to convert a part of the public highway into a Bazar, that the bye-laws could not permit what was not permitted by the Act, that the Rajasthan Town Municipalities Act ordained that the Municipal Board was a trustee of the highway, that the side lanes were also a part of the highway; that the suit for public nuisance was maintainable without proving any damage;that no question of dis-possession or ouster of the plaintiffs from any part of the public street could arise as they had no right of possession over the public street; that the stall-holders did not claim adversely to the Municipality and that they were in possession of the parts of public street on the basis of Tehbazari from the Municipality; that the plaintiffs in these circumstances had a continuing cause of action and that their suit could not be barred by time so long as the wrong continued and there was no question of application of Section 28, of the Limitation Act and upheld the decision of the learned single Judge. The Municipal Council, Sri Ganganagar and the stall-holders have asked us to grant them leave for appeal to the Supreme Court.

3. On behalf of the Municipal Council it was urged that the decision of the Division Bench affected their property and their entire right of Tehbazari collections which were well above Rs. 20,000/- in every year and therefore the condition laid down in Article 133(1)(b) was satisfied.

4. Article 133(1) of the Constitution of India reads as follows:

133. (1) An appeal shall lie to the Supreme Court from any judgment, decree of 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 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. The question which emerges for our consideration is whether the judgment involves directly or indirectly some claim or question respecting property of not less than Rs. 20,000/-,

6. The phraseology 'directly or indirectly some claim or question to or respecting property of' came to be considered in Hanuman Prasad and Anr. v. Bhagwati Prasad and Anr. (1902) 24 All 236 and their Lordships observed that 'it is not enough that the question decided by such decree is a question of title which may possibly affect the title of persons who are not parties to the decree to property not the subject-matter of the suit in which the decree was passed, and concerning the title to which property there is no litigation pending '

7. In Abdul Karim and Ors. v. Allah Bakhsh and Ors. 1913 Punjab Record, Case No. 90, p. 320 it was observed that were certain persons, being ground landlords of a valuable 'Ganj' occupied by various tenants, were unsuccessful in five suits brought for ejectment of some of these tenants and for enhancement of rent, the consolidated value of these five suits being less than Rs. 10,000/- but the value of the whole Ganj was considerably over Rs. 10,000/-, their Lordship of the Punjab Chief Court held that the question directly or indirectly involved must be one between the parties to the suits which have been instituted and not one between one party to such suits and other persons who were not parties to those suits.

8. The Madras High Court in Rajah of Ramnad v. Kamith Ravuthan 66 IC 686 following the Allahabad decision (1) observed that the expression 'claims or questions to or respecting property of like amount or value' refers only to questions arising between the parties to the suit and not to questions affecting the title of one of the parties to the suit 'in suits that may hereafter be brought but are not now pending.'

9. The High Court of Madras in Alagappa Chetty v. Nachiappan 43 MLJ 728 followed the decision of the Allahabad High Court (1) and held that the expression 'indirectly a claim or question to or respecting property' must be determined with reference to the actual circumstances at the time and not to circumstances which are remote and not in particular to a mere possibility that future suits as to all or parts of the larger extent of the property alleged to be concerned may be instituted at some time in the future.

10. In Kumar Chandra Singh Budhuria and Anr. v. Govinda Das Nath and Ors. 42 CWN 298 the learned Judges of the Calcutta High Court followed the principles enunciated in Hanuman Prasad's case (1902) 24 All 236 and Alagappa Chetty's case 43 MLJ 728 and emphasised that reference is made to actual circumstances at the time and not to circumstances which are remote or to a mere possibility of future suits.

11. In Bal Rajan others v. Mt. Mahanto AIR 1936 Lah 31 it was held that in order to make up the prescribed valuation for special leave to appeal to the Privy Council refers to suits in existence and cannot stretch to suits not yet brought.

12. In C. Achiah v. P. Gopalakrishna Reddy and Ors. (1967) II An WR 135 the validity of the Rent Control Act was challenged under Article 14 and the petition was dismissed. It was argued that the claim of the property more than Rs. 20,000/- was involved The learned Judges held that it may be remotely or incidentally involved but it could not be said that it was directly or indirectly involved and the leave was refused.

13. All these decisions which are consistent repel the contention of Mr. M.M. Vyas that the Judgment from which the leave to appeal to the Supreme Court is sought, is likely to affect the Municipal Council's income in relation to other Tehbazari stalls. We are not satisfied that the judgment involved directly or indirectly some claim or question respecting property of the value of Rs. 20,000/- or over.

14. At the fag end of the arguments an application was moved by Mr. Vyas that the number of shops involved in petition No. 5/72 is 8; in petition No. 1/72 is 3 and petition No. 60/71 involves 9 shops, and because the cases relating to all these 20 shops have been decided by a common judgment for the purposes of valuation for leave to appeal to the Supreme Court they may be consolidated under Order 45 Rule 4 C.P.C. and thus the value would exceed Rs. 20, 000/. It was also prayed that after the consolidation is ordered the dispute of valuation may be determined under Order 45 Rule 5 C.P.C. For the purposes of consolidation having regard to the language of Rule 4 of Order 45 C.P.C. it applies to those cases where the suits have been decided by a common judgment. The rule will have no application to a case of appeals disposed of by the same judgment because a common question of law arose in the cases. This is the view taken in Firm Kishorilal Jagannath Prasad v. Firm Murlidhar Banwarilal ILR (1961) 11 Raj 735 to which one of us was a party. In any case the applications for leave to appeal were presented on 2-12-71 and this application was moved on 12-4-72 after the arguments had practically concluded. The application is dismissed.

15. Now remain the applications of the stall-holders who seek leave under Article 133(1)(c). Sub-clause (c) of Article 133(1) is entirely discretionary for the High Court. The pecuniary value of the subject matter is of no consideration for the certificate under Clause (c). This clause is intended to meet special cases where the point in dispute is not measurable in money but the decision in the case was likely to affect the interest of a large number of people and the controversy was of a recurring character. The principles of law on which the learned Judges of this Court have proceeded are well settled by the Supreme Court and the Privy Council including questions touching Section 23 of the Indian Limitation Act. We are unimpressed by the argument of the learned Counsel before us that the question of limitation in this case was of such a public or private importance that it was likely to affect several cases. We have gone through, the judgment against which these appeals are directed and in our opinion it raises no substantial question of law of public or private importance warranting the exercise of our discretion to certify the cases to be as fit for leave to appeal to the Supreme Court. All the six petition are dismissed with costs.


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