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Venktrapragada Viraraghava Rao and anr. Vs. Sri Rao Bahadur Mothey Narasimharao Zamindar Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Misc. Petn. No. 2647 of 1949
Judge
Reported inAIR1950Mad124
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 110
AppellantVenktrapragada Viraraghava Rao and anr.
RespondentSri Rao Bahadur Mothey Narasimharao Zamindar Garu and ors.
Appellant AdvocateC.A. Vaidhyalingam ; T. Venkatadri and ; K. Ramachandra Rao, Advs.
Respondent AdvocateP. Somasundaram and ; M. Dwarakanath, Advs.
DispositionPetition allowed
Cases ReferredLakshmanan v. Thangam
Excerpt:
civil - appeal - sections 96 and 110 of code of civil procedure, 1908 - certificate of leave to appeal to federal court - whether defendants entitled to leave to appeal to federal court against decree of lower court - it was not case of complete variance of lower court's decree on question of damages which leaves as further grievance to be agitated before higher tribunal - held, applicant entitled for certificate of leave to appeal. - - the defendants resisted the suit mainly on the ground that they were entitled under act xv [15] of 1946 (the madras buildings lease and bent control act) to remain in possession since they satisfied the definition of 'tenants' found in section 2 (4) of that act. he said that in that base the appellate decree bad certainly affirmed the trial court's.....horwill, j.1. the plaintiffs, who were the owners or lessees of a picture house, sued to evict from it the defendants, who were partners of defendant 3 in the conducting of the cinema business in the picture house. the defendants resisted the suit mainly on the ground that they were entitled under act xv [15] of 1946 (the madras buildings lease and bent control act) to remain in possession since they satisfied the definition of 'tenants' found in section 2 (4) of that act. they had no lease deed in their favour; but they sought to support their claim by contending that by virtue of the partnership, they had entered into with the lessee (plaintiff 3) with the express consent of plaintiff 1, there was either an equitable assignment of the lease (ex. a-6) by plaintiff 3 in favour of the.....
Judgment:

Horwill, J.

1. The plaintiffs, who were the owners or lessees of a picture house, sued to evict from it the defendants, who were partners of defendant 3 in the conducting of the cinema business in the picture house. The defendants resisted the suit mainly on the ground that they were entitled under Act XV [15] of 1946 (The Madras Buildings Lease and Bent Control Act) to remain in possession since they satisfied the definition of 'tenants' found in Section 2 (4) of that Act. They had no lease deed in their favour; but they sought to support their claim by contending that by virtue of the partnership, they had entered into with the lessee (plaintiff 3) with the express consent of plaintiff 1, there was either an equitable assignment of the lease (EX. A-6) by plaintiff 3 in favour of the partnership of themselves and plaintiff 3 or that this lease in favour of plaintiff 3 must be regardedas a lease to the partnership. These and other points were considered by the learned District Judge and decided in favour of the plaintiffs A further important issue in the suit was withregard to the quantum of damages to which the plaintiffs were entitled. The learned Judge passed a decree in favour of the plaintiffs for damages at the rate of Rs. 200 a day from the date when the lease in favour of plaintiff 3 expired to the date when the defendants might hand over possession to the new lessees, plaintiffs 3 to 7. In appeal, we agreed with the lower Court that the defendants obtained no right as lessees and were not tenants within the meaning of Section 2 (4) of Act xv [15] of 1946 and that upon the expiry of the lease in favour of plaintiff 3, the defendants became trespassers and were bound to pay damages to the plaintiffs. With regard to the quantum of damages, we however modified the decree of the lower Court in the defendants' favour in three ways. In the first place, we found that the rate of Rs. 200 a day was excessive and decreased it to Rs. 50 a day. We also held that for two short periods, the non-working of the cinema was due to the acts of the plaintiffs themselves and that for those periods the defendants were not, therefore, liable for any damages at all. The third modification of the lower Court's decree on the question of damages was that we held that while the business was being conducted by defendant 1 alone, or by him in conjunction with plaintiff 4, no damages could be awarded; for defendant 1, as receiver, was bound to account to the Court for the actual profits made and that the amount due to the plaintiffs for the periods in which the receiver was or the receivers were conducting the cinema, the profits would have to be ascertained by the Court in execution. The question is whether the defendants are entitled to leave to appeal to the Federal Court against our decree, since the value of the subject-matter of the suit and appeal exceeds Rs. 10,000, and our decree is not one affirming in its entirety the decree of the lower Court.

2. It is seen that the only modifications made in the decree of the lower Court were in favour of the defendants; and in those respects in which we have modified the decree of the lower Court in the defendants' favour, there is no ground for appeal to the Federal Court.

3. The question whether an appeal to the Privy Council where the variation of the decree of the trial Court by the appellate Court is in favour of the person who seeks to appeal to the Privy Council lies or not has been considered in several cases of this Court. Those which seem most relevant to the case here under consideration are Venkitaswami v. Sakkutti Pillai, I. L. R. (1937) Mad. 121 : A. I. R. 1936 Mad, 881; Chavali Velaya v. Hindu Religious Endowments Board : AIR1938Mad631 , K. V. Pandian v. Rev. Father Pignot, A. I. R. 1943 Mad. 67 : 208 I. C. 65 and Lakshmanan v. Thangam, I.L.R. 1947 Mad. 744 : A. I. R. 1947 Mad. 227. In the first of these cases, the trial Court passed a decree against defendants 1 and 4 for the full amount claimed in the plaint; but against defendants 2 and 8 the decree was for a lesser amount than that claimed. The plaintiff appealed, and the decree was affirmed with regard to defendant 3. Defendant 2 sought for leave to appeal to the Privy Council. It was held that as far as defendant 2 was concerned, the decree was one affirming the decision of the trial Court and that, therefore, defendant 2 could not be granted leave to appeal. The learned Judges considered the previous case law on the subject and said:

'The right way of construing Section 110 is to read the words 'decree or final order' in clause 3 in conjunction with and to treat them as relating to 'the subject-matter' mentioned in Clause 1'

and came to the conclusion that there was overwhelming authority in support of the' view that where the proposed appeal to the Privy Council was with regard to subject matters in which the appellate Court had confirmed the decision of the trial Court, no appeal lay; and agreeing with Bibhootibhooshan Sattar v. Sripati Datta : AIR1935Cal146 , they pointed out the anomalies that would result from a different interpretation of Sections 109 and 110, Civil P. C., which would refuse leave to appeal if there had been no variation in the petitioner's favour, whereas he would have a right if some modification Lad been made in favour of another party to a suit which did not affect the petitioner's right. In Velayya v. H. R. E. Board, 1988 1 M. L. J. 487 : A. I. R. 1938 Mad. 631, the trial Court held against the archakas of a temple that five items belonged to the deity. In appeal it was held that only three of the items did. The archakas then sought for leave to appeal to the Privy Council. The learned Judges while expressing their agreement with Venkataswami v. Sakkutti, I.L.R. (1937) Mad. 121: A.I.R. 1936 Mad. 881, gave the further ground for holding that the archakas under circumstances had no right of appeal for according to clause 3 of Section 110 no appeal lies

'where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order'

unless the appeal involves some substantial question of law. The learned Judges pointed out the difference in the two words above italicised and said that many matters may be decided in a suit and that if the decree of the appellate Court affirms any one of those decisions, no appeal can lie against the appellate decree with regard to that decision. In K. V. Pandian v. Rev. Pignot, A. I. R. 1943 Mad. 67: 208 I. C. 65, the plaintiff's suit was dismissed. In appeal, he pressed his case only with regard to one item, and against one respondent. On account of some arrangement arrived at between the parties and approved of by the Court, the decree of the trial Court was varied with regard to that particular item. There again, the distinction between the two words 'decision' and 'decree' was stressed; and it was said with regard to the subject-matter of the proposed appeal to the Privy Council that the decree of the appellate Court was one of affirmance. These decisions and others came up for consideration before a Pull Bench of this Court in Gangadara Aiyar V. Subramania Sastrigal, I. L. R. (1947) Mad. 6 : A. I. R. 1946 Mad. 539. There, the plaintiff filed a suit for a declaration that the alienations of eleven items were not binding on him. The trial Court decided in his favour with regard to six items and disallowed his claim with regard to the remaining five. The defendants filed an appeal with regard to the six items and the plaintiff filed a memorandum of cross-objections with regard to four out of the five items with regard to which a declaration had been refused. The appeal was dismissed and the memorandum of cross-objections allowed. The defendants sought for leave to appeal to the Privy Council, which was granted. That is seen to be a case in which the variation of the decree o the trial Court was against the persons who sought for leave to appeal to the Privy Council. The matter had apparently been posted before a Pull Bench because of a decision in Ramanathan Chetti v. Subramanian Chetti, : AIR1926Mad1024 , in which on somewhat similar facts, the Court had held that no appeal lay. The question before the learned Judges was complicated because the value of the four items was below Rs. 10,000, whereas the value of the six items was above Rs. 10,000. The question was whether in view of the fact that the value of the four items, which formed the subject matter of the memorandum of cross objections was less than Rs. 10,000, an appeal would lie to the Privy Council. It was held that since the Subject-matters of the suit the appeal and the proposed appeal to the Privy Council were all of a value of more than Rs. 10,000 an appeal would He. The learned Judges held that the decree of the appellate Court was one decree and it certainly varied the decree of the trial Court. In Ramanathan Chetti v. Subramania Chetti, : AIR1926Mad1024 , the learned Judges seemed to have regarded the appeal and the memorandum of objections as two separate appeals and the decree of the Court thereon as emboding two separate decrees.

However, the matter before the Full Bench was, as would appear from the judgment of the learned Chief Justice at the bottom of page 8 and the beginning of page 9 'the question whether there is a right of appeal in circumstances such as we have here.' During the course of the judgment, the learned Chief Justice had to consider' Venkitaswami v. Sakkutti, I. L. R. (1937) Mad. 121 : A. I. R. 1936 Mad. 881 which he found to be not in point. He said that in that base

'the appellate decree bad certainly affirmed the trial Court's decree so far as defendant 2 was concerned and that the application for leave did not travel beyond him. Although we do not accept all the observations made in the judgment, we see no reason to question the correctness of the decision in the peculiar facts of the case.'

What observations in the judgment of 'Venkatasubba Rao J., the learned Chief Justice and the other learned Judges did not accept does not appear; but it is clear that the Full Bench felt that Venkitaswami v. Sakkutti, I. L. R. (1937) Mad. 121: A. I. R. 1936 Mad. 881 was not in point, and they did not, therefore, have to consider the correctness or otherwise of the observations made therein. So that case remains good law despite the Full Bench decision. With regard to Velayan v. H. R. E. Board : AIR1938Mad631 , all that the learned Chief Justice had to say was that it did not go beyond Venkitaswami v. Sakkutti, I. L. R. (1937) Mad. 121 : A. I. R. 1936 Mad. 881 and that, therefore, it was not necessary to discuss the case in detail. No disapproval is noted with regard to this reasoning of the learned Judges in Velayan v. H. R. E. Board : AIR1938Mad631 or of the observations of the learned Judges in that case with regard to the important distinction between the words 'decision' and 'decree'.

4. The effect of the above Full Bench decision upon the earlier decisions came up for consideration in Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227 where all the authorities bearing on the question were discussed in considerable detail. The cases above discussed may be distinguished from the case here under consideration in that they related to decisions with regard to the rights of various defendants to properties in which they were separately interested; and so it could be argued that those cases were authorities only for the position that where the appellate Court had affirmed the decision of the trial Court with regard to the interest of a particular defendant or a particular item of property, no appeal would lie with regard to that interest or property. In Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227, however, the plaintiff filed a suit for partition attacking the genuineness of a partition deed evidencing an earlier partition. The suit was dismissed; and the decision of the trial Court was substantially affirmed in appeal. But there was a variation in two respects ; one with regard to the maintenance of defendant 10 and' the other with regard to the debts of defendant 1, which he alleged were payable by the family. The learned Judges carefully considered not only the previous authorities of the Madras High Court on this subject, with which they expressed their agreement, but also the decisions of other High Courts, agreeing with the views expressed by the High Courts of Calcutta, Bombay and Lahore and preferring them to the views held by the Patna and Allahabad High Courts. They approved of the distinction drawn in Velaya v. H. R. E. Board : AIR1938Mad922 and K. V. Pandian v. Rev. Pignot A. I. R. 1943 Mad. 67 : 208 I. C. 65 with regard to the words 'decision' and 'decree' and again held that where the decision of the Court on any matter was affirmed by the appellate Court no further appeal to the Privy Council would lie unless it raised a substantial question of law.

5. The principles to be applied by us in this application could not have admitted of much discussion had it not been for the remarks of the Privy Council in allowing an application for special leave to appeal in Annapurnabai v. Ruprao . There, the plaintiff brought a suit for the possession of certain property on the ground that he was the adopted son of the last male holder, Defendant 2 raised certain contentions which were not accepted; and so a decree was passed in favour of the plaintiff. The Court however decreed a maintenance for petitioner 1 (in the special leave application) at the rate of Rs. 800 per annum. In appeal, the decree was modified by increasing the maintenance of that petitioner from Rs. 800 to Rs. 1200. Petitioner l then applied for leave to appeal to the Privy Council which was refused. Thereupon, the petitioner filed an application to the Privy Council for special leave. That application being unopposed the matter was heard ex parte; and Lord Dune-din on behalf of their Lordships pronounced this very short order:

'In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of Section 110, Civil P. C., is correct, and the petitioners had a right of appeal. They should have special leave to appeal, but it should be limited to the question as to the maintenance allowance.'

This decision was considered in all the cases above referred to, as well as in numerous cases in other High Courts. Rankin C. J., in Bibhootibhooshan Datta v. Sreepati Dutta : AIR1935Cal146 said:

'The question is, whether, on the strength of the only case before the Privy Council which we have for our guidance, the views hitherto adopted in this and other High Courts require to be further considered. The question is whether the judgment of their Lordships means that, in every case where the decree of the High Court is not a mere decree dismissing the appeal or a mere decree affirming the order of the Court below, the necessity for showing a substantial question of law in done away with. It appears to me that the case of Annapurnabai v. Ruprao is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council.'

A similar view was expressed by the Chief Justice of Bombay in Kapurji v. Pannaji A. I. R. 1929 Bom. 359 : 119 I. C. 771 and by Din Mohammad J., in Brahmanand v. Sanatan Dharam Sabha, A. I. R. 1944 Lah, 329: 216 I. C. 33. The learned Judges of this Court in the various decisions referred to have agreed with these remarks. In Gangadara v. Subramania, I.L.R. (1947) Mad, 6 : A. I. R. 1946 Mad. 539 the learned Chief Justice set out the facts which gave rise to the application for special leave in Annapurnabai v. Ruprao but did not say that in view of the Privy Council decision, the earlier decisions of this Court seemingly to the contrary were bad. The learned Judges in Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227, in interpreting the Pull Bench decision did not regard it as overruling or disapproving of any of the decisions of this Court other than Ramanathan Chetti v. Subramaniam Chetti, : AIR1926Mad1024 . The learned Judges, however, added towards the end of their judgment:

'It the subject-matter of the dispute in appeal had been the amount of the decree or the amount of damages, a variation, whether to the prejudice or in favour of the petitioner would not alter the decree of variance into one of affirmance.'

It is possible to argue that even in determining the quantum of damages we came to many decisions; and that against the decisions in favour of the petitioners no further appeal is sought; but no case to which our attention has been drawn has carried the process of anatomical dissection of the judgment anything like as far as the learned counsel for the respondents would have us do in this application. I think it would be more in accord with the principles accepted and followed in Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227 where the learned Judges seemed to consider that Annapurnabai v. Ruprao had at least a limited applicability to cases on all fours with it, if we granted leave to appeal on the ground that our decree is not one of affirmance on the question of damages.

6. I am not very impressed with the argument that substantial questions of law are involved; but since the petitioners are entitled to a certificate on other grounds, it is not necessary to give reasons for rejecting it. The petition is allowed with costs.

Raghava Rao J.

7. I agree that this petition should be ordered. The facts of the matter before us as well as the facts of the several rulings dealt with in the judgment of my learned brother are so fully stated in it that in this supplementary judgment which I am now delivering, I propose to confine myself to a discussion of the principles emerging from the rather confused case law on the subject and to indicate the points of view from which I have endeavored to arrive at my decision.

8. The statutory provisions relevant to the decision of the question before us are what are contained in Sections 109 and 110, Civil P. C. of 1908. In construing them it is necessary to bear in mind a few fundamental principles which, I conceive, are incapable of dispute. While it is clear that a right of appeal which is always the creature of statute cannot be enlarged beyond the letter of the statutory provision conferring the right, it is equally clear that the right cannot be curtailed in a manner not warranted by such letter. It is the letter, in my opinion, that essentially matters for the construction of the statutory provision into which speculations ought not to enter about what the Legislature may or may not have intended, apart from what it has expressed by the language that it has employed. Further, to use the words of Reilly J., in Perichiappa Chettiar v. Nachiappan : AIR1932Mad46 .

'Section 109(a), Civil P. C., gives a right of appeal to His Majesty in Council from any decree made on appeal by a High Court. Section 110, Civil P. C., qualifies that right of appeal by making two exceptions to it. First, there is no appeal under Section 109(a) if the amount or value of the subject matter of the suit in the Court of first instance or in dispute in the proposed appeal is less than Rs. 10.000 and the decree does not involve directly or indirectly some claim or question to or respecting property of that amount or value. Secondly, there is no appeal under Section 109(a) if the decree of the High Court affirms the decision of the Court immediately below the High Court and the proposed appeal does not involve any substantial question of law. These two exceptions, as they partially take away the right of appeal given by Section 109(a) must be strictly construed.'

The result yielded by the application of these rules of construction to Section 109, Civil P. C.,cannot, I think, be better expressed than in the language of the same learned Judge in the same case appearing lower down in a passage which I take leave to quote here :

'At one time it was held by the Calcutta High Court that, even when a decree of that Court had modified a decree of the lower Court on appeal, it was an affirming decree for the purpose of Section 110, Civil P. C., so far as it agreed with the decision of the lower Court, and that, if the proposed appeal to His Majesty in Council inferred only to that part of the decree, some substantial question of law was necessary to give a right of appeal. That view, which it may be pointed out involved the implication of words not found in Section 110, was taken in Rajasree Nath Roy v. Secy, of State, S. C. W. N. 294 and Annapurnabai v. Ruprao , but has been shown to be incorrect by the decision of the Judicial Committee in the latter case. Although that Implied extension of the exceptions to Section 109(a) is no longer possible, it is urged for defendant 2 that we are still entitled to effect a different extension of the exceptions by reading the last clause of Section 110 as if it ran 'provided that, so far as the decree or final order appealed from in respect of any separable part of the case affirms etc' and that, if that part involves no substantial question of law, it should be excluded in calculating the necessary Rs. 10,000. The view appears to have been taken in Narendralal Das v. Gopendralal : AIR1927Cal543 and Kapurji Magniram v. Pannaji Debichand, 31 Bom. L. R. 619 : A. I. R. 1929 Bom. 359. But with great respect, I am not prepared to follow those decisions. If a decree is really a composite decree or a series of decrees dealing with what should strictly be the subject of separate suits --e.g., a decree dealing with alienations in favour of different defendants, which by long established practice we have allowed to be made the subject of one suit--then it may be proper to separate each decree of the series for the purpose of appeal to His Majesty In Council. But apart from that in my opinion we are bound by the plain language of Section 110, Civil P. C., and are not at liberty to read into it any words which are not to be found there actually or by necessary implication.'

Anantakrishna Aiyar J., the other learned Judge, who was a party to the decision in Perichiappa Chettiar v. Nachiappan : AIR1932Mad46 remarks much to the same effect in these words at p. 215 of the report:

'The argument advanced on behalf of the respondent necessitates that very many words should be implied in Section 110 to justify the interpretation of the section contended for by him. We feel that it is not open to us to do so. Section 109 gives a right of appeal to the Privy Council. Section 110 is a proviso to Section 109. It is a rule of law that a proviso should receive a strict construction. It is not open to the Court to add words to a proviso with a view to enlarge the scope of the proviso. The proviso must be restricted to the scope reasonably conveyed by the words used therein.'

This result, as will be seen from the quotations, is the logical corollary to the reasoning accepted by the Judicial Committee of the Privy Council in Annapurnabai v. Buprao . It seems to me that it is not open to any Court in India to whittle down or eviscerate that decision in any manner, or to recognise any implied extension of the exceptions to Section 109(a) which are not to be found in the statute itself. That the pronouncement by the Judicial Committee was made in a short judgment or on an application heard ex parte is hardly any ground for any Indian High Court to refuse to follow and give effect to their Lordships' clear and categorical language. Nor does Eankin C. J.'s judgment in Narendralal . v. Gopendralal : AIR1927Cal543 which has been followed in later cases of this Court which have differed from Perichiappa Chettiar v. Nachiappa : AIR1932Mad46 , disclose any convincing reason for limiting the overruling effect of the Privy Council decision to the invalidation of Sreenath Roy's case, 8 C. W. N. 294, on its own facts without more. The learned Chief Justice observes at p. 544, column 1 of the report that that case is the origin of the doctrine that the language which now finds place in Section 110 of the Code is to be construed with reference to the subject-matter in dispute in the appeal to the Privy Council. His Lordship observes too at p. 545, column 2 that the particular application made in that case of the principle that you have to have regard to the subject-matter of dispute in appeal to the Privy Council must be taken as overruled, and yet his Lordship shrinks from holding that the doctrine itself stands overruled and winds up his discussion with a conclusion expressed in the following words at p. 546 of the report:

'We may take it, I think, that where the amount is a question in dispute, the fact that the Courts differ and that the higher Court differs in favour of the applicant does not mean that the decision is one of affirmance, but I am not, in a case of this kind, prepared to say that because on a totally different point, namely, a point about the share, the applicant has succeeded and succeeded altogether so that he has no further grievance in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Courts have been in agreement.'

9. This illogical, laboured and not particularly well-reasoned process--to speak with all deference to the learned Chief Justice of the High Court of Bengal--of delimiting the effect of the Privy Council decision in a manner not warranted by the plain language of their Lordships which further accords with the plain language of the Statute has been followed by another Bench decision of the Calcutta High Court reported in Bibhootibhooshan Datta v. Sreepati Datta : AIR1935Cal146 , in the course of which the learned Judges (Mukerji A. C. J. and S. K. Ghose J.) refer at p. 260 of the report to all the cases decided by the several High Courts subsequently to the Privy Council decision in Annapurnatai v. Buprao in which a contrary view was taken. The learned Judges refer in that list of authorities to Perichiappa Chettiar v. Nachiappa : AIR1932Mad46 , but they do not anywhere in the judgment attempt to meet the cogent reasoning behind Perichiappa Chettiar v. Nachiappan : AIR1932Mad46 , or the three Patna decisions to which they make a reference in the same connation. They then refer to Sreenath Roy's case, S. C. W. N. 294 and Rankin C. J.'s view in Narendralal v. Gopendralal, A. I. R. 1827 cal. 543 : 103 I. C. 65--with which they agree--that that case is no longer good law after the Privy Council ruling in Annapurnabai v. Ruprao . They accept Rankin C. J.'s conclusion expressed at the end of the judgment in words which I have quoted earlier and also the conclusion of the Nagpur Judicial Commissioner's Court to the same effect expressed in words which they quote at p. 263 of the report, namely :

'Where the modification of a decree of a lower Court consists of a modification of a pecuniary nature in the appellant's favour on a matter to be debated before the Privy Council, it amounts to a variation of the decree of the trial Court, and it is immaterial as far as that point is concerned, whether under Section 110 any substantial question of law is involved. But the appellant cannot make that decision a basis of appeal to the Privy Council on grounds unconnected with or dissociable from those on which he has succeeded and on which the Courts were of one mind.'

By the way, I may observe here that the word 'succeeded' is a mistake and ought to have been 'failed'. The learned Judges then refer to Bansilal v. Gopal Lal, 10 Lah. 688: A.I.R. 1930 Lah. 102 and Nathulal v. Raghubir Singh : AIR1932All65 , the one accepting and the other rejecting the test of substantial and not trivial variance as being of the essence of the test applicable. They then wind up the discussion of the case law with this observation :

'The above in short is the position of authorities bearing on the point. We have carefully considered the matter and are inclined to agree in the view of Rankin. C. J., as to the true effect of Annapurnabai's case and we would prefer to adhere to it until a more definite and authoritative pronouncement is made by the Judicial Committee to the contrary.'

It is a pity that in this judgment which seems indeed well considered, there is, if at all, no adequate consideration--I mean by way of an attempt to refute the reasoning so pointedly set forth in Perichiappa Chetti v. Nachiappan : AIR1932Mad46 . That may have been because the Bench which decided Bibhootibhooshan Datta v. Sreepati Datta : AIR1935Cal146 ,felt itself apparently bound by an earlier Bench decision of their own High Court and could not of course be expected to give it up in favour of the view of this High Court or of any other High Court and did not feel itself called upon to enter into any detailed discussion of the case of our High Court reported in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46

10. But how does the matter stand in this High Court after Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 . Since that decision which is of 16th. October 1930 there has been a catena of decisions all speaking in one single voice discordant; to that of Perichiappan Chetti v. Nachiappan : AIR1932Mad46 of which the latest reported is Lakshmanan v. Thangam,, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227 of nth October 1946, but for the decision of a Pull Bench reported in Gangadara v. Subramania, I. L. R. (1947) Mad. 6: A. I. R. 1946 Mad. 539. Strong reliance was placed for the petitioners before us on this ruling of the Full Bench, while it was contended for the respondents, that the Full Bench ruling as interpreted by the latest Bench decision--Lakshmanan v. Thangam, I.L.R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227--concludes this petition against, the petitioners.

11. Before dealing with these respective contentions of the parties based upon these two decisions, I may as well refer to two decisions reported in Venkitasami Cheltiar v. Sakkutti Pillai, : (1936)71MLJ580 and Velayya v. H. R. E. Board, Madras : AIR1938Mad631 , to both of which Venkatasubba Rao J., was a party, his colleague having been in the former case Cornish J., and in the latter Abdur Rahman J. The learned Judge pronounced the judgment of the Court in the one case and the leading judgment in the other in which after expressing hesitation Abdur Bahman J., eventually concurred. The earlier of them which alone refers to the ruling in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 , does not on a careful scrutiny seem to deal with it fairly and squarely or address itself to the reasoning underlying the interpretation placed by the learned Judges in that case on the relevant sections of the Civil Procedure Code. Curiously enough, Venkatasubba Rao J., in Venkitasami Chettiar v. Sekkutti, 71 M.L.J. 580 : A. I. R. 1936 Mad. 881, characterises the observations of the learned Judges in Perichiappan v. Nachiappan : AIR1932Mad46 with reference to the effect of the Privy Council decision in Annapurnabai v. Ruprao as obiter, little realising that they were part of the ratio decidendi of Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 concerning the proper interpretation of Section 110, Civil P. C. The learned Judge, perhaps truly enough, observes that the argument negatived by the Court in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 , was that there should be deemed to be as many subject matters as there were items in dispute. Says the learned Judge then :

'This is precisely what we have been trying to show; there is a distinction between the decree taken as a whole and the several decisions in respect of the various subject-matters comprised in that decree.'

The learned Judge fails to realise here that the distinction so made by him stands, however, completely negatived by the decision in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 . It may be noticed that the case in Venkitasami Chettiar v. Sekkutti Pillai, : (1936)71MLJ580 was one in which the variation of the High Court's decree was in respect of other parties than the party seeking to appeal to the Privy Council, although the discussion embraced a case of variation in respect of subject-matter as well as in respect of parties. Then, as regards the later decision in Velayya v. H. R. E. Board, Madras : AIR1938Mad631 , it may be noticed that, there, the variation by the High Court's decree was in respect of certain items which concerned the same party seeking leave to appeal as had lost in both the Courts in India concerning the other items. So far as the reasoning of Venkatasubba Rao J., is concerned, it adds but little to that of the earlier ruling. Abdur Rahman J., however, it may be observed, gives reasons in support of a contrary view formed in his mind during the hearing which he did not command the courage to adhere to till judgment as a result of his discussion with his learned brother.

12. These two decisions depend for their soundness upon three considerations revealed by a careful perusal; (a) that the right way of construing Section 110, Civil P. C., is to read the words 'decree or final order' in clause (3) in conjunction with, and to treat them as relating to, the 'subject-matter' mentioned in clause (1). See Venkitasami Chetti v. Sekkutti Pillai, : (1936)71MLJ580 ; (b) that in Section 110, Civil P. C., the words used in relation to the High Court whose judgment is sought to be appealed against are 'the decree' whereas in regard to the lower Court the expression used is 'decision' (See Velayya v. H. R. E. Board, Madras : AIR1938Mad631 and (c) that there are bound to be a number of anomalies resulting from a contrary view, the enormity of which the learned Judges in Bibhootibhoosan Datta v. Sreepati Datta : AIR1935Cal146 , emphasised, (See Velayya v. H. R. E. Board, Madras : AIR1938Mad631 , and that the possibility of a certificate for leave to appeal to the Privy Council so as to embrace matters on which there have been concurrent findings of fact against the petitioner does not, if the contrary view is accepted, stand excluded, although at the hearing of the appeal by the Privy Council no such, concurrent findings of fact can be assailed.

13. Now to take these three points seriatum, the first does not seem to my mind to be well founded. The collocation of the words 'the subject-matter in dispute on appeal to His Majesty in Council' of clause (1) of Section 110, Civil P. C., and of the words in clause (3) 'the decree or final order appealed from' is not such as to necessitate the reading together of the two sets of words so as to curtail a right of appeal which, on the only mode of construction justified by the plain positions in the section occupied by the two seta of words or at any rate on an equally possible manner of construction of which they are susceptible, is available to the litigant. This mode of reading together of the two sets of words it is that lay at the root of the doctrine of Sreenath Boy's case, 8 C. W. N. 294, which admittedly stands overruled by Annapurnabai v. Ruprao and which, as I shall show in the sequel, the Pull Bench in Gangadara v. Subramania, I.L.R. (1947) Mad. 6 : A.I.R. 1946 Mad. 539 also disapproves of by necessary implication, if not in express terms. The mode of construction indicated in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 is, in my opinion, quite natural and simple while that adopted in by Venkatasubba Rao J. is highly strained, laboured and artificial. As regards the second point, I am inclined to think that the interpretation which Abdur Rahman J. was first disposed to place on the word 'decision' as observed by him in Velayya v. H. R. E. Board, Madras : AIR1938Mad631 is the correct interpretation. As regards the third point, there are two observations which fall to be made. The first is that a consideration of possible anomalies is not a ground for construing the plain words of a statute in a manner opposed to their plain meaning Further a concurrent finding of fact though not ordinarily liable to be disturbed by the Privy Council is not invariably quite so sacrosanct as is supposed by the learned Judge. It may be useful in this connection to bear in mind the observations made by the Federal Court in the judgment of Mahajan J. in which the Chief Justice and the other learned Judges concurred in a recent case, Gangadara Aiyar v. Subramania Sastrigal, C. A. No. XVIII of 1948 : not still reported so far as I know, (since reported in A. I. R. 1949 P. C. 88 concerning the rule against the reopening of concurrent findings of fact of the Courts below :

'Their Lordships of the Privy Council have always expressed unwillingness to depart from the general rule which prevents the fresh examination of facts for the purpose of disturbing concurrent finding by the lower Courts. In Maung Tha Hnyeen v. Maung Pan Nyo, 27 I. A. 166 : 28 Cal. 1, Lord Hobhouse, in delivering the opinion of the Board, observed as follows:

'Although acute criticisms have been made upon some points in the case, there has been nothing to show that there has been a miscarriage of justice, or that any principles of law or of procedure have been violated in the Courts below. This case is one which very decidedly falls within the valuable principle recognised here, and commonly observed in second Courts of Appeal, that such a Court will not interfere with concurrent judgments of the Courts below on matters of fact, unless very definite and explicit grounds for that interference are assigned.'The rule was again restated by Lord Lindley in Rani Srimati v. Khajendra Narayan Singh, 31 I. A. 127 : 31 Cal. 871and by Lord Macnaghten in Sanwal Singh v. Satrupa Kunwar, 28 All. 215 : 33 I. A. 53 and recently by Viscount Sumner in Mohamed Ali v. W. S. G. Harvey, 115 I. C. 722 : A. I. R. 1929 P. C. 63. In Jehangir Shapoorji v. Revd. Savarkar , Lord Wright observed as follows :

'Their Lordships have examined the whole history in some detail, because in regard to issue No. 7 the question is rather one of law, and in any case there are not on that issue concurrent findings of fact; accordingly the whole case had to be considered in order to deal with that issue. But their Lordships must not be taken to have in any way failed to give effect to the rule that on an issue of fact concurrent findings should be conclusive, unless indeed where the enforcement of the rule would work obvious injustice, or the violation of some principle of law or procedure. The importance of the rule is to discourage bringing before this Board issues of fact in which the appellant has failed in two Courts. The present case as regards the issue to which the rule applies, affords a complete illustration of the wisdom of the rule. Apart from their decision on the merits, their Lordships are for dismissing the appeal on that issue simply on the ground of the concurrent finding.'All the cases bearing on the point commencing from 1849 have been reviewed by Lord Thankerton while delivering the judgment of the Board in Blbhabati v. Ramendra Narayan, and a number of propositions have been enunciated explaining the scope of the rule.

I have considered it necessary to refer to these cases because this is really the first case that came before us after the enlargement of the jurisdiction of the Court and in which an attempt was made to re-open conclusions on questions of fact concurrently arrived at in the two Courts below. The rule as to concurrent findings is not a rule based on any statutory provision. It 13 a rule of conduct which the Privy Council had laid down for itself. Following this rule, the Judicial Committee usually declined to review the evidence for a third time unless there were special circumstances which would justify a departure from this practice. As observed by Lord Thankerton in Bibhavati v. Ramendra Narayan, the practice is not a cast iron one and the grounds given in the decisions justifying departure from the above rule are merely illustrative. In an appropriate case and on a suitable occasion this matter may have to be fully considered and elucidated in all its aspects, but for the purposes of this case it is enough to state that in the absence of circumstances justifying departure from this rule, this Court could adhere to the practice developed by the Judicial Committee during the course of a century.'

14. It may likewise be pertinent to refer in this connection to the observations of Ananta-krishna Ayyar J, in Perichiappan Chettiar v. Nachiappan : AIR1932Mad46 which run in these terms :

'When a petitioner is given a right of appeal to the Privy Council and he prima facie satisfied the conditions prescribed by the section, we think it is our duty to grant him leave to appeal in such a case. As remarked by the Privy Council, 'the chance of success of the appellant in the proposed appeal to the Privy Council is not material' to such an application for leave. The Privy Council has repeatedly remarked in several cases that as regards' the amount of maintenance to be decreed to a litigant in India, the Privy Council will not ordinarily interfere, and yet the Privy Council granted leave to appeal in the case reported in Annapurnabai v. Ruprao regarding the amount of maintenance. The Privy Council will not ordinarily interfere with concurrent findings of facts arrived at by Courts in India on any particular point, yet if the decree of the High Court did not affirm the decision of the trial Court, and if the value of the subject-matter of the suit in the trial Court and in the appeal to the Privy Council be Rs. 10,000 or upwards, a party desirous of appealing to the Privy Council would seem to be entitled to leave to appeal from the decree of the High Court under Section 110, Civil P. C. as interpreted by the Privy Council in the case reported in Annapurnabai v. Ruprao though no substantial question of law is involved in the proposed appeal.'

15. Having thus disposed of the three points gatherable from the two decisions, of Yenkata. Subba Rao J. I now turn to the Full Bench ruling of this Court reported in Gangadara v. Subramania, I.L.R. (1947) Mad. 6: A. I. R. 1946 Mad. 539. That Full Bench--I agree with the respondents' learned advocate--expressly settled only the limited conflict between the two Divisional Bench decisions of this Court in Ramanathan Chetti v. Subramania Chetti, : AIR1926Mad1024 and Sundara Mudaliar v. Ratnavelu Mudaliar, 52 Mad. 521: A. I. R. 1929 Mad. 429 both by the same Judges, Phillips and Odgers JJ. True, also, there was no order of reference to a Full Bench made in that case; no question formulated by a Divisional Bench for the decision of a Full Bench. The civil miscellaneous petition for leave to appeal in the Full Bench case having been originally posted before the Divisional Bench as a matter of course, was presumably directed by that Bench of which the learned Chief Justice was apparently a member to go before a Full Bench for disposal. The decision of the Full Bench was that the earlier decision in Ramanathan Chetti v. Subramanian Chetti, 51 M. L. T. 295: A. I. R. 1926 Mad. 1024 was wrong and the later decision in Sundara Mudaliar v. Rathavelu Mudaliar, 52 Mad. 521: A. I. R. 1929 Mad. 429 was right. But there are statements of the law to be found in the Full Bench decision as to the interpretation of Sections 109 and 110, Civil P. C., the exact scope of the Privy Council ruling in Annapurnabai v. Ruprao and the true meaning and effect of the decision in Venkitasami Chettiar v. Sekkutti Pillai : AIR1936Mad831 and of later decisions which have followed it, which are material to the present discussion and which accordingly I wish to refer to.

16. First, there is a passage at P. 9 of the report which runs in these terms:

'Appeals to the Privy Council are governed by the provisions of Sections 109 and 110, Civil P. C. Where the case fulfils the requirements of the Code with regard to value, a party has a right of appeal, if the decree of the appellate Court varies the decree of the trial Court. Where the appellate Court affirms the decisions of the Court below, an appeal lies only when it involves some substantial question of law. In this case it is admitted that there is no substantial question of law. Undoubtedly, the decree of this Court varied the decree of the trial Court in an important respect, because it gave four more items of property to the plaintiff.'

Two observations fall to be made on this passage. Firstly this, in my opinion, is a statement of the law on the basis of the language of the sections of the Civil Procedure Code as they stand, made in broad and general terms which do not take in restrictions laid down by the two decisions of Venkatasubba Rao J. Secondly, the variance of the decree of the trial Court by the High Court to the prejudice of the party seeking leave to appeal Seema here to be made a point of. But whether the point so seeming to be made was in reality intended must, I consider, be gathered from the second passage in the Full Bench judgment which I wish to refer to next. That passage at P. 10 of the report comes close on a discussion of the facts of the Privy Council ruling in Annapurnabai v. Ruprao and is in the words following:

'In delivering the judgment of the Board, Lord Dunedin said that the contention of their counsel that they were entitled to leave by virtue of the provisions of Section 110 of the Code was correct. They had a right of appeal. Lord Dunedin added that the petitioners' chance of success was not material to their application. As the petitioners accepted the finding with regard to the plaintiff's adoption, the special leave given was limited to the question of maintenance. There is here a pronouncement of the Judicial Committee that, where there is a variance of the decree passed by the trial Court the party affected thereby is entitled as of right to a certificate subject, of course, to the requirements of the Code being fulfilled with regard to value.' The words occurring in the last sentence of the passage quoted above are 'affected thereby' which it must be noticed do not necessarily mean 'prejudicially affected thereby' but only mean 'which has bad a material effect produced thereby'. I have consulted the Concise Oxford Dictionary in this connection which confirms me in the interpretation of the words which I have just given. Moreover, the context of the learned Chief Justice's decision with reference to the Privy Council ruling in Annapurnabai v. Ruprao which was itself a case of beneficial and not prejudicial variation lends support to the meaning, I am assigning to this expression 'affected thereby. Prima facie, it may be stranger indeed that a party who has not been prejudicially but beneficially affected by a variation should be allowed to, have by reason of such variation a right of appeal in regard to the other matters which have gone against the party seeking leave to appeal in both the Courts below or to have his right of further appeal even in regard to the matter on which he has had partial variation to his benefit in the High Court determined with, out exclusion from consideration of that part of the subject-matter which has gone in his favour in the High Court. The learned Chief Justice however accepts this position, however strange it may seem, in the passage quoted above, because of the Privy Council ruling reported in Annapurnabai v. Ruprao , whose facts he discusses at length in the context.'

17. The next passage of the Full Bench judgment which I may refer to but need not quote is at page 11 of the report and discusses the case in Perichiappan Chetti v. Nachiappan : AIR1932Mad46 with no word of adverse comment and apparently with approval. This is the decision on which adverse comment was made by Venkatasubba Rao J. in Venkitaswami Chetti v. Sekutti Pillai : (1936)71MLJ580 . Nor only is there no adverse comment made on this decision by the judgment of the Full Bench, but there is adverse comment made by the Full Bench on the decision in Venkitasami Chetti v. Sekutti Pillai, : (1936)71MLJ580 in a passage to be found at pages 12 and 13 of the report (Gangadara v. Subramania, I. L. R. (1947) Mad. 6: A. I. R. 1946 Mad. 539 of which it is necessary to refer only to these following sentences at page 13:

'It was held by Venkatasubba Rao and Cornish JJ. That he (plaintiff) was not entitled to a certificate because this Court's decree in respect of the second defendant was one of affirmance. A distinction was drawn between the words 'decree or final order' in clause 3 of Section 110 and the term 'the subject-matter' mentioned in clause 1. There, all that the plaintiff was wanting to do was to challenge in the Privy Council the finding that the second defendant was only liable for a small portion of the decree. The appellate decree had certainly affirmed the trial Court's decree so far as the second defendant was concerned and the application for leave did not travel beyond him. Although we do not accept all the observations made in the judgment, we see no reason to question the correctness of the decision on the peculiar facts of the case.'

Before I enunciate what I gather to be the effect of the Full Bench ruling on the point now under consideration I desire to observe with reference to the last quotation made by me from Gangadara v. Subramania, I. L. R. (1947) Mad. 6 : A. I. R. 1946 Mad. 539, that the sentence therein 'A distinction was drawn between the words 'decree or final order' in clause 3 of Section 110. and the term 'the subject-matter' mentioned in clause 1' is the outcome of a little confusion of thought on the part of the learned Chief Justice. Venkatasubba Rao and Cornish JJ. did not draw a distinction but instituted a correlation between the words 'decree or final order' in clause 3 of Section 110 and the term 'the subject-matter' mentioned in clause 1 by reading them together for the purpose of determining the scope of the right of appeal to the Privy Council. If we correct the confusion and read the sentence in the proper manner, it follows that the clause at the beginning of the last sentence of the last quotation, namely, 'Although we do not accept all the observations made in the judgment' contains a disapproval by the Full Bench of the mode of construction of Section 110, Civil P. C. which began in Sreenath Boy's case, 8 C. W. N. 294 and ended with Annapurnabai v. Buprao . The effect of the Full Bench decision in Gangadara v. Subramania, I. L. R. (1947) Mad. 6: A. I. R. 1946 Mad. 539 is in my judgment this, that it has not only accepted Sundara Mudliar v. Katnavelu Mudaliar, 52 Mad. 521: A. I. R. 1929 Mad. 429 in preference to Ramanathan Chetti v. Subramania Chetti, : AIR1926Mad1024 but also has accepted Perichiappa Chetti v. Nachiappa : AIR1932Mad46 in preference to Venkitaswami Chetti v. Sekkutti Pillai, : (1936)71MLJ580 and to later decisions which have followed the last with regard to the proper mode of interpretation of Section 110, Civil P. C. The approval made by the Full Bench of the decision in Venkitasami Chetti v. Sekkutti Pillai, : (1936)71MLJ580 is I think only on the basis of the peculiar facts of that case and not with reference to the entire exposition of the law contained therein. The decision in Venkitasami Chetti v. Sekkutti Pillai, : (1936)71MLJ580 was, in other words, held correct, because the party seeking leave, i. e., the plaintiff, sought to take advantage of the High Court's reversal of the decree of the trial Court against the third defendant for making out a right of appeal against the second defendant against whom he had concurrently lost in both the Courts. It was held incorrect so far as it read together the words 'decree or final order' in clause 3 of the Section 116, Civil P. C. and the words 'the subject-matter' in Clause 1.

18. In the light of what I have said, it follows that I cannot agree with the view expressed in Lakshmanan v. Thangam, I.L.R. (1947) Mad. 744: A. I. R. 1947 Mad. 227 that the distinction that was drawn in 'Venkatasubba Rao J's judgment in Venkitasami Chetti v. Sekkutti Pillai, (1936) 71 M. L. J. 580: A. I. R. 1936 Mad. 881 between the words 'decree or final order' in Clause 3 and the term 'subject-matter' mentioned in clause 1 was specifically referred to by the Full Bench without dissent. There was no such distinction drawn by Venkatasubba Rao J. as pointed out by me already and as in some little confusion erroneously supposed by the learned Chief Justice in Gangadara v. Subramania, I. L. R. (1947) Mad. 6: A. I. R. 1946 Mad. 539, what was done by him being only to read the words 'decree or final order' in Clause 8 in conjunction with the expression 'the subject-matter' in Clause 1. Nor was this process of reasoning referred to by the Full Bench without dissent as supposed by the Court in Lakshmanan v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. (34) 1947 Mad. 227, a disapproval of this process of reasoning being, in my opinion, what is implied in the declared declination of the Full Bench to accept all the observations made in the decision in Venkatasami Chetti v. Sekkutti Pillai, : (1936)71MLJ580 . I therefore hold that the Full Bench decision in Gangadara v. Subramania, I. L. R. (1947) Mad. 6 : A. I. R. 1946 Mad. 639, has been wrongly understood by the Divisional Bench which decided Lakshmanan v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. (1947) Mad. 227 and that the true view to take of the matter in the existing state of the case law of this Court and with due regard in particular to the Full Bench ruling in Gangadara v. Subramania, I. L. R. (1947) Mad. 6: A. I. R. 1946 Mad. 539, is that if quoad the party seeking leave to appeal the decree sought to be appealed against is not one of wholesale affirmance, it does not matter, inwhat particular or to what extent the variation hag taken place or whether the variation wholly or to the extent to which it has gone is in favour of the party seeking to appeal or against him. In such a case, so long as the statutory requirement of value of the subject-matter of the suit as well as of the proposed appeal, inclusive of course even of portions on which there have been concurrent findings against the party seeking leave to appeal, stands satisfied, the party is, in my opinion, entitled, without showing that a substantial question of law is involved in the proposed appeal, to a certificate which cannot be limited by the exclusion of such portions of the subject-matter from its ambit.

19. While this is my view of the matter, on which it follows that the certificate of leave to appeal to the Federal Court asked for in this case should be granted, it goes without saying that even on the narrower view adopted by this Court in Lakshmanan v. Thangam, I. L. R. (1947) Mad. 744: A. I. R. 1947 Mad. 227, which is what my learned brother is prepared to accept, the applicant is entitled to the certificate asked for, because this is not a case of complete variance of the lower Court's decree on the question of damages, which leaves as further grievance to be agitated in this regard before a higher tribunal.


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