1. These are petitions by some of the respondents in A.S. No. 418 of 1932 for leave to appeal to His Majesty in Council from the order therein and for issue of a certificate that the case is a fit one for such appeal.
2. A.S. No. 418 of 1932 was an appeal from the decree of the Subordinate Judge of Devakotta dated 7th November, 1932, dismissing O.S. No. 109 of 1930 on his file on the preliminary ground of multifariousness or misjoinder of defendants and of causes of action. In appeal this Court held that there was no such misjoinder and remanded the suit to the original Court for disposal on the merits. It is this order which is sought to be taken in appeal to His Majesty in Council. It is clear that this order is not a 'decree or final order'. The Advocate-General who appeared for the petitioners intimated that he did not propose to argue that the order was a 'decree or final order', though he desired it to be noted that he did not abandon the point or make any concession regarding it. The point is however well settled, and it is enough to refer to the latest ruling of their Lordships of the Judicial Committee in Abdul Rahman v. D.K. Cassim & Sons (1932) L.R. 60 IndAp 76 : I.L.R. 11 Rang. 58 : 64 M.L.J. 307 (P.C.). It follows therefore that the present petitions are not maintainable under Clauses (A) and (B) of Section 109 of the Code of Civil Procedure, and they were actually argued as if they were made only under Clause (C) of that section and can be allowed only on the ground that the case is a fit one for appeal to His Majesty in Council.
3. It was pointed out by Lord Hobhouse in Banarsi Prasad v. Kashi Krishna Narain I.L.R.(1900) 23 All. 227 that this clause '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'. In a latter case Radhakrishna Aiyar v. Swaminatha Aiyar Lord Buckmaster observed that this clause contemplates cases in which it is impossible to define in money value the exact character of the dispute, and where there are questions as for example, those relating to religious rights 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. Again, in the words of Sir Walter Schwabe, C.J., in Raja Rajeswara Sethupathi v. Tiruneelakantam Servai (1922) 44 M.L.J. 217 'what is contemplated in a class of cases in which there may be involved questions of public importance, or which may be important precedents governing numerous other cases, or in which, while the right in dispute is not exactly measurable in money, it is of great public or private importance'.
4. It was contended on behalf of the petitioners that this clause would cover a case in which a substantial question of law is raised which is of great public or private importance. The substantial questions of law raised in the present case, as formulated by the Advocate-General, are (1) whether Order 1, Rule 3, Civil Procedure Code can be so interpreted as to permit of joinder of causes of action when such joinder is not permitted under Order 2, Rule 3, Civil Procedure Code and (2) whether on a proper construction of Order 1, Rule 3, Civil Procedure Code, the allegations in the plaint allege 'the same act or transaction or series of acts or transactions'. The first of these two-questions is no doubt a question of law; the second, however, is not so much a question of law as a question of applying the law to the facts of a particular case. The present suit is directed against defendants 1 to 4, 6 to 12 and 15, the relief sought in it being only against these defendants for an account of the management of the plaintiff's estate during his minority from 1915 to 1929. Defendants 2 and 3 are the undivided sons of the first defendant (Rajah Sir Annamalai Chettiar) a cousin of the plaintiff's father; defendant 4 is the son of the late Ramaswami Chettiar, another cousin of the plaintiff's father; defendants 6 to 12, and the deceased defendant 13 (whose legal representative Defendant 15 is) are alleged to have been agents employed in the administration of the plaintiff's estate. The substance of the plaint is that after the plaintiff's father died in 1915 leaving his widow (D. 5) and the plaintiff, then a child of three years behind him, the widow allowed first defendant and the fourth defendant's father to manage the plaintiff's estate, that the latter did in fact jointly manage the estate till the death of the fourth defendant's father in October, 1918, since when the first defendant carried on the management solely, and that throughout such management by them they acted in collusion with the agents employed in the management, viz., defendants 6 to 13, and defrauded the plaintiff to such an extent that while the true assets of the plaintiff's estate excluding jewels and immovable property, on plaintiff's attaining majority should have been 'considerably over a crore of rupees' only a sum of thirteen lakhs was found to exist, the great bulk of his assets and profits having been 'either misappropriated, or retained and withheld by the first defendant'. In short, the plaintiff alleged that there had been embezzlement on a very large scale of his estate during his minority by those who were managing the same, and asked for accounts from those responsible for such embezzlement.
5. The two questions formulated by the Advocate-General do not appear to be substantial questions of law, and they are certainly not of great public importance. It was conceded in the reply that every question of law is not a substantial question of law, and that a question of law will not be substantial merely because much is at stake on the answer to it. It was further conceded that a substantial question of law must be a question of some difficulty in which the pros and cons are about evenly balanced. The first question is one which presents no difficulty, and it was certainly one on which no doubt could be entertained by the Bench which decided it in the appeal, in view of the Full Bench decision in Govindaraja Mudaliar v. Alagappa Thambiran I.L.R.(1926) Mad. 836 : 1926 M.L.J. 194 (F.B.) which had settled the matter finally. As observed in the order sought to be appealed from 'The Full Bench decision is as binding upon our Bench as it was upon the Subordinate Judge, and since it was pronounced almost ten years ago nothing has arisen to shake its validity. On the contrary the Bombay High Court which once held a different opinion is now aligned with Calcutta and Madras. Especially in mere questions of procedure the rule that usually prevails is stare decisis. The point has not been argued before us, and Govindaraja Mudaliar v. Alagappa Thambiran I.L.R.(1926) Mad. 836 : M.L.J. 194 (F.B.) unless it is reversed by a superior Court must stand as the accepted law'. It has been held in Punnayya v. Lakshminarayana A.I.R 928 Mad. 448 that where a Full Bench decision of our Court has settled the law, the fact that there is conflict between that decision and a decision of another High Court does not render the case a fit one for appeal to the Privy Council. In the present case there is no such conflict; on the other hand, three High Courts have arrived at the same conclusion on the point. When the question has been so well settled it cannot be said that it is a substantial question of importance which is fit to be taken on appeal to His Majesty in Council.
6. The second question formulated by the Advocate-General presents even less difficulty, and it is certainly not a substantial question of law of any importance. The questions and the answers to them do not affect substantial rights; they relate only to such formal matters as the joinder of parties and of causes of action. Even if there is misjoinder it is not necessarily fatal, and in the present case it was held that if there had been misjoinder an opportunity to elect should have been allowed to the plaintiff. Where substantial rights are in no way affected by an order there is prima facie no reason for issuing a certificate that the case is a fit one for appeal to His Majesty in Council. On the other hand, as observed by the Patna High Court in Nrisingha Charan Nandy v. Rajniti Prasad Singh : AIR1934Pat564 'another consideration which we must keep in view in granting the certificate under Section 109, Civil Procedure Code, is that the litigation is not made oppressively expensive and the elucidation of the real issues in the case by a trial of the suit is not unduly postponed or delayed'. The present suit was instituted in July, 1930, i.e., more than 41/2 years ago. An appeal to the Privy Council from the order remanding the suit for trial on the merits will mean further delay in the trial of the real issues in the suit. It is difficult to resist the conclusion that the real object of these petitions for leave to appeal to His Majesty in Council is to delay the trial of the suit further, and not to obtain the decision of His Majesty in Council on any substantial question of law of importance. The propensity of litigants, especially well-to-do litigants, occupying the position of defendants, to delay the trial of suits against them by every means in their power has increased, is increasing, and must be diminished. One would naturally expect that persons in the position of the petitioners against whom gross embezzlement of an estate during the owner's minority is alleged would be anxious to have the earliest opportunity to repel such a disgraceful charge, and not to seek a further opportunity of having the claim against them dismissed on the technical plea of multifariousness. This natural attitude is not the attitude adopted by the petitioners in these petitions.
7. No case has been brought to our notice in which leave to appeal to His Majesty in Council has been granted from an order deciding a point of procedure like a plea of multifariousness. In the present case the plea of multifariousness is moreover devoid of any real substance; persistence in such a plea deserves no encouragement. It is no doubt open to us under Clause (C) of Section 109, Civil Procedure Code, to grant a special certificate in a proper case but the present case is in our opinion not a proper case and we must therefore decline to grant it.
8. The petitions are dismissed with costs - one set of costs in the main Petition (C.M.P. No. 3349 of 1934).