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A.V. Subramania Aiyar Vs. Sellammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in31Ind.Cas.296; (1916)30MLJ317
AppellantA.V. Subramania Aiyar
RespondentSellammal
Cases ReferredMoti Chand v. Ganga Prasad Singh
Excerpt:
civil procedure. code (act v of 1908), sections 109, 110 - value of subject-mailer in court of first instance less than rs. 10,000--value of subject-matter in dispute on appeal to his majesty in council more than rs. 10,000--certificate, if can be granted--involve 'directly or indirectly, some claim or question, to, or respectiny property of like amount or value, meaning of. - john wallis, c.j.1. in this case the amount or value of the subject-matter of the suit in the court of first instance was less than rs. 10,000, but the amount or value of the subject-matter in dispute on appeal to his majesty in council exceeds that sum owing to the claim for mesne profits for the period between the institution of the suit and the petition for a certificate. it is clear that the case does not satisfy the provisions of the first paragraph of section 110, civil procedure code, but we are asked to grant the certificate on the ground that, in the circumstances, the decree of the high court involves 'directly or indirectly, some claim or question to or respecting property of like amount or value' within the meaning of the second paragraph. if this contention' be accepted, a.....
Judgment:

John Wallis, C.J.

1. In this case the amount or value of the subject-matter of the suit in the Court of first instance was less than Rs. 10,000, but the amount or value of the subject-matter in dispute on appeal to His Majesty in Council exceeds that sum owing to the claim for mesne profits for the period between the institution of the suit and the petition for a certificate. It is clear that the case does not satisfy the provisions of the first paragraph of Section 110, Civil Procedure Code, but we are asked to grant the certificate on the ground that, in the circumstances, the decree of the High Court involves 'directly or indirectly, some claim or question to or respecting property of like amount or value' within the meaning of the second paragraph. If this contention' be accepted, a certificate must be granted in any case in which the amount or value of the subject-matter in dispute on appeal to his Majesty in Council is not less than Rs. 10,000, whether or not the amount or value of the subject-matter of the suit in the Court of first instance feel below Rs. 10,000, and this provision becomes wholly nugatory. In a case where the value of the subject-matter was less than Rs. 10,000 in the Court of first instance, but the value of the subject-matter on appeal to the Privy Council exceeded that sum owing to the accrual of interest in the meantime, their Lordships held that the appellants had not brought themselves within the section: Moti Chand v. Ganga Prasad Singh 29 I.A. 40 : 4 Bom. L.R. 156; and I do not think it can make any difference whether the original deficiency in value is subsequently made up by the accrual of interest, or by a claim for mesne profits for the intervening period or by costs. The decision in Dalgleish v. Damodar Narain Chowdhry 8 C.L.J. 533, proceeded on the authority of Mohideen Hadjiar v. Pilchey (1893) A.C. 193, a case under the Ceylon Ordinance No. 1 of 1889, which does not impose any condition as to the amount or value of the subject-matter of the suit in the Court of first instance. This condition was first imposed in India by the Privy Council Appeals Act (VI of 1874). The order of 10th April 183S had prescribed that the amount or value of the subject-matter in dispute in appeal to His Majesty in Council must be Rs. 10,000 or upwards. The alternative which now forms the second paragraph of Section 110, Civil Procedure Code, was introduced in Clause 39 of the Letters Patent, which contained a proviso that the sum or matter at issue is of the amount or value of not less than Rs. 10,000 or that such judgment, decree, or order shall involve, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than Rs. 10.000.' So far the amount or value of the subject-matter of the suit in the Court of first instance did not in any way effect the right of appeal, but it is clear to my mind that in 1874, the Legislature intended to alter this and by the new provision inserted on the section to impose an additional restriction with reference to the amount or value of the suit when filed. It is of course necessary to read the whole section together and to give effect to every part of it, and when doing so, it becomes necessary, in my opinion, in order to give effect to the new provision in the first paragraph, to put a restrictive constuction on the general words of the second paragraph which are reproduced from Section 39 of the Letters Patent, and to read them in their present collocation as applying only to cases which involve some claim or question to or respecting property additional to the actual subject-matter in dispute in the appeal and to be taken into account therewith in making up the appealable value. Something might be said for this construction of the alternative provision as it stood in Clause 39 of the Letters Patent, and I think that it is imperatively required in the present Section 110, Civil Procedure Code, which first appeared as Section 5 of the Act of 1874, if the provison in the earlier part or the section is not to be rendered nugatory. Some difficulty, is no doubt occasioned by the retention in the second paragraph of the words 'involve directly,' but I think ray learned brother, in his judgment which have had the advantage of reading, has shown how effect may be given to the word 'directly' consistently with this construction; and in any case think that in the section as it now stands, the words, involve directly,' cannot be read as including cases which involve nothing but the actual subject-matter in dispute in the appeal. Cases winch involve nothing else are, in my opinion, governed exclusively by the first paragraph. The petition is dissmissed with costs.

Srinivasa Aiyangau, J.

2. This is an application for leave to appeal to His Majesty in Council. The original suit was to recover possession of a portion of a house with mesne profits from the defendant. Though the plaintiff claims the whole house, she does not sue for the remaining portion as she is in possession of it. It is however, admitted that the market value of the whole house, together with the amount claimed for mesne profits up to the date of the institution of the suit, is much less than ten thousand rupees. It is stated that the value of the whole house, together with mesne profits as claimed by the plaintiff up to the date of the decree in appeal, would amount to over ten thousand rupees. Two points are taken for the petitioner, first, that the value of the subject-matter of the suit in the Court of first instance should taken to be above ten. thousand rupees, second, that whether the subject-matter of the suit in the Court of the first instance was above ten thousand rupees or not, the final decree of this Court involves a claim to property of over ten thousand rupees in value. As regards the first point, petitioner contends that the subject-matter of the suit in the Court of first instance includes mesne profits subsequent to the date of the suit. If this contention is right, mesne profits subsequent to the date of the institution of the suit up to the date of the final determination by the Judicial Committee, or even beyond, till the delivery of possession of the property, or three years after the date of the final decree, whichever event first occurs, would be the subject-matter of the not and its value would vary with the length of time during which the suit may be pending in the Courts. This contraction renders the enactment of this portion of, the clause perfectly useless; for there can be no case in which the matter in dispute on appeal to His Majesty in Council would be of the appealable value in which the subject-matter of the suit would not at least be of the same value. Prior to Act VI of 1874, it was well settled that interest on money claims and mesne profits of immoveable property subsequent to the date of the institution of the suit, actually awarded by the decrea appealed against, may be added in computing the value of the matter in dispute in appeal to His Majesty in Council, but not interest accruing subsequent to the decree, and if that amount was Rs. 10,000 or over, a party was entitled to appeal; though the value of the subject-matter of the suit in the Court of first instance was less. Gooroopershad Khoond v. Juggutchunder 8 M.I.A. 166 : 1 Suth. P.C.J. 399 : 1 Sar. P.C.J. 742 : 132 R.R. 150, Doorga Doss Chowdry v. Ramanauth Chuwdry 8 M.I.A. 262 Gooroo Doss Boy v. Gholam Mowlah Marshall's Reports 24 : 1 Hay. 103; see also Bank of New South Wales v. Owston 4 App. Cas. 270. Act VI of 1874 for the first time enacted that the value of the subject-matter of the suit in the Court of first instance should also be ten thousand rupees or upwards and imposed an additional restriction on the right of appeal. I think except in British India and Straits Settlements, no such restriction is to be found in the laws of the other Colonies or British possessions. In Motichand v. Ganga Prasad Singh 29 I.A. 40;, the Judicial Committee expressly decided that when the amount claimed in the suit was less than ten thousand rupees, no appeal lay to His Majesty in Council,1 though the amount of the matter in dispute, in appeal by the addition of interest subsequent to the institution of the suit came to ten thousand rupees or upwards. This decision is conclusive on the question, and I am unable to draw any distinction between interest and mesne profits in this respect,' The petitioner relied on Dalgleish v. Damodar Narain Chowdhry 8 C.L.J. 533, and Basanta Kumar Roy v. Secretary of State for India in Council 6 Ind. Cas. 792, in support of his contention. In the first of the above cases, it seems to have been assumed that future mesne profits formed part of the subject-matter of the suit, and reliance was placed on the judgment of the Judicial Committee in Mohideen Hadjiar v. Pitchey (1893) A.C. 193. That was a case from Ceylon and the attention of the learned Judges of the Calcutta High Court was apparently not drawn to the provisions of the Ceylon Ordinance, which contains no clause similar to the first portion of Clause 1 of Section 110 of the Code of Civil Procedure. Though the case of Moti Chand v. Ganga Prasad Singh 4 Bom. L.R. 156; was cited in the argument, there is no reference to it in the judgment. In the second case, it is said that as the Court could provide in the decree for the payment of mesne profits in respect of the property from the institution of the suit until the delivery of possession or until the expiration of three years from the date of the decree with interest such mesne 'profits and interest can, I think, be legitimately regarded as part of the subject-matter of the suit.' So also can the Court award interest from the date of the institution of the suit up to the date of payment or realization. There is no reference in the judgment to the case of Moti Chand v. Ganga Prasad Singh 29 I.A. 40. In the case of future mesne profits, the cause of action, it must be remembered, does not accrue even at the date of the institution of the suit. With the greatest respect to the learned Judges, I am unable to follow these decisions. I, therefore, disallow the first contention.

3. As to the second point, petitioner contends that inasmuch as the decree of this Court directs him to surrender possession of the house and pay mesne profits, the decree necessarily involved a claim to property of over the appealable value. This construction renders the whole of the first Clause nugatory. It must be remembered that provisions similar to these are to be found in the laws of a large majority of the Colonies (See the table in Burge's Colonial Laws, Volume I, page 362, et seq.) and it is impossible to construe the second Clause of Section 110 of the Code of Civil Procedure so as to render the first perfectly useless. If the second Clause stood by itself (See Wheeler's Privy Council Practice, page 694) it would be legitimate to construe it in the manner suggested, as the word involves' is sufficiently wide to cover direct adjudications in respect of the subject-matter in dispute. In this case, we have to take both the clauses together so as to give a meaning to both. In my judgment, the first clause applies to cases where the decree awards a particular sum, or property of a particular value, or refuses that relief, (i.e.), to cases where the object-matter in dispute is of a particular value. In fact, the words objects in dispute' are used in the provisions relating to appeals from Guernsey. If the operation of the decision is confined only to the particular object-matter, Clause 2 does not apply, and unless the case satisfies the conditions in Clause 1, there is no right of appeal. If the decision beyond awarding relief in respect of the particular object-matter of the suit affects right in other properties, Clause 2 would apply; also if the matter in dispute is one which is incapable of valuation as in the case of easements, Clause 2 may apply. A few illustrations from the decided cases would make the matter plain. In Sree Mutty Ranee Surnomoyee v. Maharajah Sutteeschunder Boy 3 W.R. 14, the plaintiff sued to establish his right to enhance the rent of a holding in the possession of the defendant, which the defendant claimed to hold at a fixed rent of Rs. 65, The plaintiff obtained a decree establishing his right to enhance the rent to Rs. 800 or thereabouts. The question was raised whether the value of the subject-matter in appeal to the Privy Council was the capitalised value of this Rs. 800, which would be the amount by which the value of the defendant's estate would be diminished. Their Lordships found it difficult to bring the case within the words of the Order in Council of April 10, 1838, but gave special leave to appeal on the ground that the decision involved a claim to property of more than ten thousand rupees in value. I may draw attention to the fact that this decision was given in the year 1860 and the present second Clause was introduced into the Letters Patent in the year 1862.

4. In A mar Chandra Kundu v. Shoshi Bhushan Roy 8 C.W.N. 225, the plaintiff, a tenant in-common, sued for a mandatory injunction directing the defendant, another tenant-in-common, to demolish buildings erected by him on a plot of common land. The subject-matter of the suit was for purposes of Court fees valued at Rs. 1,500. The plaintiff obtained a decree in the High Court, the result of which was to oblige the defendant to remove buildings worth more than ten thousand rupees. Leave to appeal to the Privy Council was applied for and granted. In a similar case in Madras, Sreemuth Devasigamani Pandarasannadhi v. Palaniappa Chettiar 9 Ind. Cas. 281 : 9 M.L.T. 83, the plaintiff obtained in the High Court a decree for possession of a piece of land worth at the most Rs. 2,000; the defendant had built on the land and the buildings were valued at over Rs. 20,000, and he had to remove them. Leave to appeal to the Privy Council was applied for by the defendant and granted.

5. In Mutusawmy Jagavera Yettapa Naiker v. Vencalaswara Yettia 10 M.I.A. 313. a decree was passed by the Civil Court of Tinnevelly in appeal, awarding Rs. 2,500 a year for maintenance, that being the highest sum which the first Court had jurisdiction to give and this decree was confirmed by the High Court. An application for special leave was made to Her Majesty in Council. In discussing the question whether the application should not have been made to the High Court first, their Lordships came to the conclusion that it could not have been made there on the ground that the matter in dispute was below Rs. 10,000. It must, however, be noted that the facts of that case were peculiar.

6. In Sauvageon v. Gauthier 30 L.T. 510, A, who had obtained an assignment of certain choses in action from B, sued one of the debtors, O, to recover the debt due to him. The assignor had become an insolvent and his assignee in bankruptcy intervened in the suit and claimed the sum as against A, the private assignee, contending that the assignment was void as against him. His contention was disallowed and he applied for leave to appeal to the Privy Council. The Privy Council declined to give leave; but they said that if he had instituted a suit against the private assignee for a declaration that that assignment was bad, the subject-matter of the suit would have been over the appealable value, but inasmuch as his claim was limited to only one of the debts, he was not entitled to leave; they declined to grant special leave on the ground that that decision need not necessarily affect the title to the other debts.

7. In Ajuas Kooer v. Musammat Lateefa 18 W.R. 2, where the suit was to establish the plaintiff's rights to fake water from a channel to irrigate his land, Markby, J., held that the value of the subject-matter in dispute was the amount by which the value of the land would be diminished if the right to take the water was not granted. The learned Judge drew a distinction between the value of the relief 'and the value of the subject-matter.'

8. In Macfarlane v. Leclaire 15 Moo. P.C. 181 the plaintiff sued for a sum of money, being the debt due to him from X. He applied for attachmant before judgment and attached certain properties in the hands of Y, on the ground that Y was holding those properties on behalf of X. Y claimed the properties as his own under a conveyance from one P, who himself obtained the properties from X. Plaintiff replied that the conveyance from X to P and from P to Y were fraudulent as against the creditors of X. The plaintiff succeeded. The amount of debt due to him for which he obtained a decree was less than the appealable value, but as the adjudication was also that the purchase by Y was not valid as against the creditors of X, the decision involved a question of title to the property of over the appealable value. The Privy Council, in the absence of a clause like the second Clause, were obliged to bring it within the words matters in dispute in appeal to the Privy Council.'

9. The above cases, except the cases reported as Amar Chandra Kundu v. Shoshi Bhushan Roy 31 I.A. 24, and Sreemuth Devasighamaim. Pandarasannadhi v. Palaniappa Chettiar 9 Ind. Cas. 281 : (1911) 2 M.W.N. 154, were decided when the Order in Council, dated 10th April 18,58 or provisions similar thereto were in force. They afford instances of cases in which the subject-matter of the suit was incapable of a real or accurate valuation, or where the value of the subject-matter of the suit was below the appealable value, but the decision directly involved a claim or question respecting property of over ten thousand rupees in value. Even if the words subject-matter of the suit' or matter in dispute in appeal' do not mean the object-matter, but connote the jural relationship between the parties see Ramaswami Aiyar v. Vythinatha Aiyar 13 M.L.J. 448, also Kaveri Ammal v. Sastri Ramier 13 M.L.J. 58, the present case would clearly come within the first Clause and the second Clause would have no application whatsoever. In some cases, it may be difficult to determine under which clause a particular case falls See Ram Kirpal Shukul v. Rup Kuar (1881) A.W.N. 32 and Bhagwat Sahai v. Pashupati Nath Boss 10 C.W.N. 564; but I do not think that this would in any way affect the decision, as I think that in all cases in which the final decision involves a claim or question to property of a particular value, the decision of the first Court also would necessarily involve a claim or question in respect of property of the same value.

10. The following cases are instances in which the decision involves indirectly a claim or question to or in respect of property of the appealable value. Baboo Gopal Lall Thakoor v. Teluk Chunder Rai 7 M.I.A. 548; Ko Khine v. Snadden 37 L.J.P.C. 119 : 5 Moore P.C. (N.S.) 76; Joogulkishore v. Jotendro Mohun Tagore 6 Ind. Jur. 356, In the matter of the petition of Khwaja Muhammad Yusuf (1896) A.W.N. 39; Sri Kishan Lal v. Kashmiro 21 Ind. Cas. 617. I am supported in the construction which I have adopted by the decision in Be Silva v. Be Silva 6 Bom. L.R. 403 and a case from the Colonies, Gardiner v. Miculloch (1876) 2 V.L.R. 128, cited in Wheeler's Privy Council Practice, 604. In Dalgleish v. Damodar Narain Chowdhry 8 C.L.J. 533, already cited., a different view was taken, but no reasons were given for the conclusion. I am unable to follow it. On the other hand in Moti Chand v. Ganga Prasad Singh 29 I.A. 40 : 4 Bom. L.R. 156; already referred to, the Judicial Committee proceed on the assumption that the second Clause was inapplicable to cases of this sort. I would, therefore, disallow this contention also.


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