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Surendra Nath Roy and ors. Vs. Dwarka Nath Chakrabutty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.605
AppellantSurendra Nath Roy and ors.
RespondentDwarka Nath Chakrabutty and anr.
Cases Referred and Rajah Makund Deb v. Gopi Nath Sahu
Excerpt:
civil procedure code (act v of 1908), section 110, para. 2 - appeal to privy council--value of subject-matter-material date for determination of value--question of law, inference deducible from facts, if is. - .....affect property of the value of rs. 10,000 and upwards.8. the only other question is, whether the decree appealed against, which is in affirmance of the decree of the court immediately below, involves a substantial question of law. as already explained by the chief justice, the question in controversy relates to the nature of the tenancy held by the defendants under the plaintiffs; was that a permanent tenancy or a tenancy terminable by notice to quit? the district judge has in effect accepted the findings of the court of first instance, but he has drawn from those findings a conclusion precisely contrary to that drawn by the trial court. the question thus is, what inference may legitimately be drawn from the facts found, and this clearly is a mixed question of fact and law, as appears.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an application by the plaintiffs for leave to appeal to His Majesty in Council. An action was brought by the plaintiffs against the defendants claiming ejectment from certain property. The plaintiffs allege that the defendants are tenants-at-will only, while the defendants allege that they had a permanent tenancy which had been granted by the plaintiffs' predecessor to the defendants' predecessor, and the Munsif before whom the action was brought gave judgment for the plaintiffs and came to the conclusion that the tenancy was a terminable one on notice. Then there was an appeal to the District Judge, who accepted the findings of fact arrived at by the Munsif but came to the conclusion that the tenancy was a permanent one and gave judgment for the defendants. Thereupon the plaintiffs applied to a Division Bench of this Court for permission that the appeal should be admitted under Order XLI, Rule 11, of the Code of Civil Procedure. That application was rejected on the 14th December 1914. The applicant now asks this Court for leave to appeal to His Majesty in Council against the order of this Court dismissing his application under Order XLI, Rule 11.

2. The first question raised by the Vakil for the opposite party is under Section 110. He says that under that section the subject-matter of the suit must be of the value of its. 10,000 at the date of the institution of the suit, and also that it must be of that value at the date of the decree from which the appeal to His Majesty in Council is desired. Now I think that, without deciding whether this case does come within the first paragraph of Section 110 of the Code of Civil Procedure, as to which there may be some difficulty inasmuch as there was no evidence as to the value of the subject-matter while this case was in the Court of first instance, I think this matter does come within the second paragraph of Section 110 of the Code of Civil Procedure, seeing that the decree or final order involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000-The decree or final order must be the decree or final order from which the appeal is made, that is, the decree of the High Court of December 1914 and when one remembers that the question which it is desired to argue is this, whether upon certain given facts or data the tenancy is to be regarded as one at will or one of a permanent nature, it seems to me that this is a matter in which a substantial question of law is involved.

3. The other question which I have to consider is whether the property is of the value of Us. 10,000 or upwards. We have the report which was made at the instanee of the High Court dated January 1916, which is to the effect that the property was worth Rs. 11,400. The learned Vakil says that this is all very well. The property may have been worth Rs. 11,000 in 1916 but it does not follow that it was worth that amount at the date of the institution of the suit. I do not think myself that that is the material date. I think the material date is the date of the decree of the High Court from which the appeal is to be made and that date is admittedly December 1914. It may be said that even if that was the value of the property in January 1916, it does not follow that the value was the same in December 1914 inasmuch as according to the report the property has gone up by leaps and bounds within the last few years. When we look at the report, especially at the materials upon which the Munsif made his report, we find from the evidence given by the valuer that the property was valued at Rs. 300 a cotta. He corroborated his opinion by referring to two conveyances of the land in the immediate neighbourhood which are dated the 4th and 9th April 1914, and there seems to have been no other transaction subsequent to the dates on which the valuer based his opinion and consequently I think that the value arrived at by Mr. Warwick at Rs. 300 per cotta may be taken to have been the value of the property in 1914. Therefore, the value of the property was above the requisite amount in December 1914, and for this reason the case comes within the second paragraph of Section 110 of the Code of Civil Procedure.

4. The property was at the date of the decree worth more than Rs. 10,000, but the learned Vakil went on to argue that the plaintiff could not now assert that the property was worth Rs. 10,000 inasmuch as ho brought his suit in the Munsif's Court and he paid Court-fees on the. annual rental of Rs. 4-4.

5. Speaking for myself, I do not think that the plaintiff is debarred from raising the point that the property which is in dispute is in fact of the value of Rs. 11,400. It may very well he that at the time he instituted the suit he thought if he could, according to the Rules of the Court, bring his case within the jurisdiction of the Munsif he would be well advised to do so. The point taken by the learned Vakil may have been a good one, for objecting to the jurisdiction of the Munsif in the Court of first instance, at the most, it could only be taken as an admission and it was one that might be rebutted by subsequent evidence that it was worth more than Rs. 10,000.

6. For these reasons I think the application should be allowed and leave to appeal to His Majesty in Council granted.

Asutosh Mookerjee, J.

7. I agree that the petitioners have established that their application for leave to appeal to His Majesty in Council fulfils the requirements of Section 110 of the Code of Civil Procedure. The petitioners rely upon the second paragraph of the section which deals with cases where the decree involves, directly or indirectly, some claim or question to or respecting property of the amount or value of Rs. 10,000. They do not rely upon the first clause, which refers to cases where the amount or value of the subject-matter of the suit in the Court of first instance is Rs. 10,000 or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is also the same sum or upwards. They cannot take advantage of the first clause, inasmuch as there are no materials on the record to show that the value of the subject-matter of the suit in the Court of first instance, or in the Court of Appeal, was of the prescribed amount. The Trial Court, however, has reported that the value of the property affected by the decree is over Rs. 10,000. The finding of that Court is somewhat loosely expressed and it may be plausibly contended that the value as determined by that Court refers to the value in 1916. But the evidence on which the finding is based relates to transactions which took place in 1914, and, consequently, we may legitimately hold that the Trial Court has found that the value of the property affected by the decree was above Rs. 10,000 in 1914. The suit, which was instituted in 1912, was decreed by the Court of first instance on the 7th July 1913. On appeal to the District Judge, the suit was dismissed by him on the l8th June 1914. A second appeal to this Court was dismissed under Order XLI, Rule 11, on the 15th December 1914. This dismissal operates in law as an affirmance of the decree of the District Judge. The petitioners now pray for leave to appeal to His Majesty in Council against the decree of this Court dated the 15th December 1914, and the question consequently arises, with reference to what point of time is the value of the property affected by the decree to be determined for the purposes of Section 110. In my opinion, it is plain that when Section 110 provides that the decree must involve, directly or indirectly, some claim or question to or respecting property of the value of Rs. 10,000 or upwards, the intention of the Legislature is that the value is to be determined with reference to the date of the decree under appeal. This view is supported by the decision of the Judicial Committee in Allan v. Pratt 13 A.C. 780 : 57 L.J.P.C. 104 : 59 L.T. 674 where the Earl of Selborne quotes with approval the observation of Lord Chelmsford in Macfarlane v. Leclarie 15 Moore. P.C. 181 : 8 Jur. (N.S.) 267 : 10 W.R. 324 : 15 E.R. 462 that the judgment is to be looked at as it affects the interests of the party who is prejudiced by it, and who seeks to relieve himself from it by appeal. If there is to be a limit of value at all, that seems evidently the right principle on which to measure it. The proper measure of value for determining the question of the right of appeal is the value of the judgment.' It is on this principle that the Judicial Committee in Mohideen Hadjiar v. Pitchery (1893) A.C. 193 : 62 L.J. P.C. 96 held that in determining the value for the purposes of an appeal, the mesne profits up to the date of the decree are to be taken into account, and this view was followed by this Court in the case of Dalgleish v. Damodar Narain Chowdhry 33 C. 1286. The same principle was adopted by the Judicial Committee, when in the cases of Bank of New South Wales v. Ouston 4 A.C. 270 : 48 L.J. P.C. 245 : 40 L.T. 500; Gooroopersad Khoond v. Juggutchunder 8 M.I.A. 166 : 3 W.R. (P.C.) 14 : 13 Moor. (P.C.) 472 : 1 Suth. P.C.J. 399 : 1 Sar. P.C.J. 742 : 19 E.R. 463; Motichand v. Ganga. Prasad Singh 29 I.A. 40 : 24 A. 174 : 6 C.W.N. 362 (P.C.) they ruled, that interest up to the date of judgment is to be taken into account in determining whether the appealable value has been reached or not Nand Kishore Singh v. Ram Gulam Sahu 17 Ind. Cas. 221 : 39 C. 1037 : 16 C.W.N. 1089. In my opinion, it is perfectly plain that under Section 110, the point of time to be considered is the date of the judgment under appeal. If this principle is adopted, there is no room for controversy that in the case before us, the decree against which leave to appeal is sought does affect property of the value of Rs. 10,000 and upwards.

8. The only other question is, whether the decree appealed against, which is in affirmance of the decree of the Court immediately below, involves a substantial question of law. As already explained by the Chief Justice, the question in controversy relates to the nature of the tenancy held by the defendants under the plaintiffs; was that a permanent tenancy or a tenancy terminable by notice to quit? The District Judge has in effect accepted the findings of the Court of first instance, but he has drawn from those findings a conclusion precisely contrary to that drawn by the Trial Court. The question thus is, what inference may legitimately be drawn from the facts found, and this clearly is a mixed question of fact and law, as appears from a long line of cases reviewed in Mahoram Sheikh Chaprasi v. Telamuddin Khan 13 Ind. Cas. 606 : 15 C.L.J. 220 : 16 C.W.N. 557 and Rajah Makund Deb v. Gopi Nath Sahu 25 Ind. Cas. 286 : 21 C.L.J. 45. In my opinion, there is no room for doubt that the appeal does involve a substantial question of law, and that a certificate must consequently issue that the case fulfils the statutory requirements both as regards nature and value.


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