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Sree Annapurna Cotton Mills Ltd. Vs. Shyamalendu Bhaduri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberO.D. No. 244 of 1954
Judge
Reported inAIR1958Cal187
ActsConstitution of India - Article 133(1); ;Code of Civil Procedure (CPC) , 1908 - Section 110; ;Evidence Act, 1872 - Section 115
AppellantSree Annapurna Cotton Mills Ltd.
RespondentShyamalendu Bhaduri
Appellant AdvocateAtul Chandra Gupta, ;Provat Kumar Sen Gupta and ;Amiya Kumar Chatterjee, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Radhakanta Mukherjee, Advs.
DispositionApplication allowed
Cases ReferredRadhika Nath Biswas v. Midnapore Zemindari Co. Ltd.
Excerpt:
- .....lands of an inferior quality, he thought that ft would be proper to hold that the value of the suit land was about rs. 1600 per bigha, the rate that works out as the average rate for the entire 133 bighas being sold for a sum of two lac and odd rupees. he took into consideration the different documents on which the defendant relied for the purpose of showing that the value of land in the neighbourhood was in the region of about rs. 100 per bigha and has given his reasons for not relying on this for ascertaining the value of the land in suit. it was contended by mr. mukherjee on behalf of the defendant opposite party that the learned subordinate judge was wrong in rejecting these documents for the purpose of coming to a proper valuation of the suit land. (his lordship then discussed.....
Judgment:

K.C. Das Gupta, J.

1. This is an application by the plaintiff, whose suit has been ultimately dismissed, for a certificate under Sub-clause (a) of Article 133(1) of the Constitution of India. Certain other prayers were made in the application, but we are no longer concerned with them. Admittedly, the petitioner stated in the plaint the value of the land in Suit to be a sum of Rs. 15,000/- only. It stated, however, now in its present application that that valuation was not the correct market value of the land on the date of the suit, the 28-2-1947, and that the market value of the said land on that date would not be less than a sum of Rs. 24,000/- and on the date of this Court's decree, namely 9-1-1956, the value of the land would not be less than Rs. 50,000/-. On behalf of the defendant opposite party it was contended that the plaintiff was precluded fromshowing to this Court that the value of the land, on the date the suit was brought, was more than Rs. 15,000/- as mentioned in its plaint. By an order dated 6-7-1956, this Court without finally deciding the question whether the valuation put upon the plaint could be revised directed the Third Additional Subordinate Judge, Alipore, to make an enquiry and report to this Court the true value of the land as on 28-2-1947, the date of the institution of the suit and, secondly, on 16-4-1956, the date on which the application for leave to appeal to the Supreme Court was filed. The Subordinate Judge has held the enquiry and has submitted his report together with the evidence recorded by him. In his report he has stated that in February, 1947, the value of the B Schedule land -- the land of which he was asked to enquire and report as regards the value -- was about Rs. 50,000/- and that in April, 1956, the value of the same land would be about Rs. 73,000/-.

2. Before we can go into the question whether on the basis of the valuation made by the Subordinate Judge, it will be proper for us to issue a certificate in terms of Sub-clause (a) of Article 133(1), it is necessary, first, to decide the question, already referred to, raised by the opposite party, namely, whether the petitioner having in its plaint made a statement that the value of the land was Rs. 15,000/-, can be allowed to show to this Court that the valuation was not less than Rs. 20,000/- on that date. The question whether a party who has made an earlier statement in his plaint about the value of the land or has adopted the statement made by the other side as regards the value of the land and on that basis brought an appeal to a particular forum can be allowed later on, for the purpose of an appeal to a higher Court to go back on his previous statement, has come up before the Courts on many occasions. One of the earliest cases in which the question was raised was the case of Mutusawmy Jagavera Yettapa Naiker v. Vencataswara Yettia, 10 Moo Ind App 313 (PC) (A). In that case their Lordships of the Privy Council granted leave to appeal, even though the petitioner had not made an earlier application for leave to appeal, to the High Court. In that connection their Lordships after pointing out that on the basis of the previous decision of the Board which was binding on them, they would be compelled to say that as there had been no application for leave to appeal to the High Court the petitioner's application to the Board ought not to be entertained and no leave given to appeal, observed:

'But there are very peculiar circumstances in this case. The suit was instituted in the 'Sudder Ameen's Court, which has no jurisdiction in any demand above Rs. 2,500. Supposing that, upon the face of the plaint, it appeared the demand was really beyond the value of Rs. 2,500, it was competent to the Defendant to have pleaded to the Jurisdiction of the Court; but no such course was taken, and a decision having been given, and an appeal made to the High Court, both parties proceeded on the footing and upon the admission that the sum in dispute is under Rs. 10,000, the appealable amount to Her Majesty in Council.

Supposing, therefore, that an application had been made to the High Court for leave to appeal, it would not have been competent to the parties, in this state of circumstances, to turn round and say that the value was aboveRs. 10,000; and if not so, the High Court would have had no power to give leave to appeal.'

3. In Kristo Indra Saha v. HuromoneeDassee, 1 Ind App 84 (PC) (B), the High Court had rejected the application for leave to appeal on the ground of value. Application was thereupon made to the privy Council and leave to appeal was granted. Their Lordships, after pointing out that the defendant had obtained the benefit of an appeal to the High Court upon the facts by adopting the plaintiffs' valuation, remarked, 'she cannot afterwards come here and object to that valuation.' Their Lordships added:

'The Judge ought to have given more weight to the acts of the parties and not to have rejected the application on the ground of value.'

In Basanta Kumar Roy v. Secretary of State, 14 Cal WN 872 (C), the facts were that the value of the land as laid in the plaint was Rs. 6,156-9-0. The Court of first instance passed a decree against the defendants; the respondents in the High Court appealed, treating the value of the land for the purposes of the appeal as Rs. 6,156-9-0. It was held relying on the decision of Kristo Indra Sana's case (B), that this valuation could not be questioned by the defendant on the principle that a party cannot both approbate and reprobate.

4. In Rameshwar Khemka v. Siddeshwar Ghosh : AIR1927Cal418 , the circumstances were similar. The defendant had acted on the low valuation of the suit made by the plaintiff and obtained the advantage of an appeal to a lower appellate Court. Relying on the observations of the Privy Council in Mutu-sawmy's case (A), this Court held that even though the defendants had at one stage taken objection to the jurisdiction of the learned Subordinate Judge, they had abandoned that objection to jurisdiction and acquiesced in the valuation placed upon the subject-matter of the suit and obtained the advantage of an appeal to a lower appellate Court and that they could not be allowed to say that the value of the subject-matter was higher and that it amounted to Rs. 10,000 for the purpose of an appeal to His Majesty in Council.

5. Shortly after this. Rankin, C. J., and Mukherji J., had to consider a similar question in Satish Chandra Joardar v. Kumar Birendra Nath Roy Bahadur. : AIR1927Cal225 . There the plaintiffs had asked for leave to appeal to England. It appears that the valuation which was put upon the plaint for the purpose of court-fee was apart from mesne profits a valuation of some Rs. 930 only and the plaintiffs, having failed in the first Court, brought an appeal to the Court of the District Judge on the footing that the value of the subject-matter was under Rs. 5,000. The District Judge found in their favour but the High Court in second appeal was against them. When they wanted to say that the real value of the subject-matter amounted to more than Rs. 10,000, it was contended that they were estopped,

'because they cannot approbate and reprobate and that their action in taking their appeal to the Court of the District Judge means that they took an advantage on the basis that the valuation of the suit was much lower than what it is now said to be.'

Rankin, C. J., said that the view of the law appeared to be that for an appellant to proceed to a higher Court immediately was to take an advantage but it was not correct to say that to proceed to a lower Court and take a chance of what the lower Court would do was to take an advantage. In view of this he held that there was no scope for saying here that the plaintiffs were estopped, because they could not approbate and reprobate and rejected that contention. A few years later the same question fell to be considered by Rankin, C. J., when he was sitting with C. C. Ghose, J. in Mahendranarayan Ray v. Jankinath Ray : AIR1931Cal417 . The plaintiff had valued the land for the purpose of court-fee at Rs. 2,658. The defendant adopted and accepted this valuation for the purpose of an appeal to the District Judge. If, in fact, the subject-matter of the suit had exceeded Rs. 5,000, the first appeal would have lain to the High Court. On a 2nd appeal to the High Court, the decree of the lower appellate Court was reversed and the judgment of the trial Court restored. When the defendant applied for leave to appeal, it was contended that the defendant could not be heard to allege that the subject-matter of the suit in the Court of first instance was of the value of Rs. 10,000, in view of the fact that he had adopted the valuation made by the plaintiff and on that basis had obtained the advantage of an appeal to the District Judge. If the view taken in Satish Chandra Joardar's case (E), that the taking of a chance of an appeal to a lower Court does not amount to taking an advantage had been adhered to, the contention that the defendant could not be heard to allege that the subject-matter was of the value of Rs. 10,000 on the principle that a party cannot be allowed to approbate and reprobate, should have been rejected. Rankin C. J., however, pointed out that the earlier cases, namely, 10 Moo Ind. App. 313 (PC) (A) as also : AIR1927Cal418 , had not been cited before the Court in : AIR1927Cal225 , and had these cases been cited, they would have shown that the reasoning, which he then accepted, was inconsistent with authority. His Lordship further states that Rameshwar's case (D), and the observations of Lord Chelmsford in Mutusawmy'g case (A') are distinct authorities to show that the doctrine that a party cannot for this purpose both approbate and reprobate applies to the case where he appeals to the lower appellate Court upon a valuation inconsistent with the valuation upon which he seeks a certificate enabling him to appeal to the Privy Council.

6. Mention may be made in this connection of another case to which Rankin C. J., was a party -- Sm. Radharani Dassya v. purna Chandra : AIR1930Cal737 . In rejecting the application for leave to appeal to the Privy Council, his Lordship pointed out:

'It appears that, after certain scrutiny had been made of these accounts, a large sum was found by the head-clerk to be due to the plaintiff on the Receiver's account but the plaintiff still brought this suit valuing his claim to' the relief at Rs. 2,500/-; at no stage up to the present has he increased that valuation or paid any more court-fee. In my judgment, the attempt now made to say that the suit should be treated as involving over Rs. 10,000 is one that cannot be maintained.'

7. It is important to notice that in all these cases, the lower valuation which had been made at an earlier state or, having been made by the other party, adopted by the defendant, affected the question of forum for the purpose of institution of the suit or for the purpose of theappeal. In all the cases, therefore, it could reasonably be said and it was said, that one party or the other had obtained an advantage vis-a-vis the other party on the basis of the lower valuation and the argument which prevailed with this Court when the question of valuation for the purpose of availability of an appeal to the Privy Council came up for consideration, was that having obtained an advantage vis-a-vis the other party on the basis of a lower valuation, the applicant for leave to the Supreme Court could not be allowed to say that that lower valuation was not correct. All these cases and some other cases, of which mention need not be made, were considered by this Court in Radhika Nath Biswas v. Midnapore Zemindari Co. Ltd. : AIR1937Cal292 and it was laid down that the correct test to apply was whether the party seeking to vary the earlier valuation for the purpose of an appeal to England had obtained an advantage on the basis or the previous valuation, now said to be erroneous, and it was said that where it could reasonably be said that he had obtained an advantage, it could be said that he was trying to approbate and reprobate and he was precluded from revising the previous valuation. It was pointed out in Radhika Nath's case (H), that there was no question raised in the trial Court as to the market value of the property nor was there any decision thereon.

'The plaintiff now expressly says that the valuation put in the plaint was wrong. But this has not prejudiced the defendant in any way in his appeal and he merely paid the court-fees on the low valuation as put by the plaintiff. In these circumstances it seems to us it will not be right to say that the plaintiff is estopped from showing that the subject-matter in the suit in the Court of first Instance was over Rs. 10,000.'

8. Mr. Apurbadhan Mukherjee has tried to persuade us that the decision in : AIR1937Cal292 is really inconsistent with the law as laid down in : AIR1931Cal417 . According to him, on a proper reading of the latter cases it should be held that there this Court laid down as a correct principle that where a low valuation has been made by a plaintiff or adopted by a defendant the doctrine that a party cannot both approbate and reprobate applies, Irrespective of whether only party had taken advantage on it, as regards the forum I can find nothing in the judgment of Rankin O. J., to justify this proposition. As already indicated, when his Lordship did say, dissenting from the earlier view taken by himself in Satish Joardar's case (E), that the principle that a party cannot both approbate and reprobate applied to these cases he distinctly mentioned that the case where this applied was where a party appealed to the lower appellate Court upon a valuation inconsistent with the valuation upon which he sought a certificate enabling him to appeal to the Privy Council. There is no Justification for reading into this observation a general proposition that whenever one valuation has been given, the party who has given that valuation cannot be allowed to prove that that valuation was wrong on the doctrine that the party cannot both approbate and reprobate, whether or not any advantage had been obtained by him on the basis of that valuation against the other party.

9. It seems clear to me that there can be no application of the doctrine that a person cannot both approbate and reprobate, except withreference to the party in respect of whom he is said to approbate and reprobate. If he has obtained an advantage vis-a-vis the opposite party on the basis of a statement and wants to go back on it, that would amount to an act of reprobating something which he has already approbated. Whether, however, no such advantage is obtained against a particular party between whom and the person, who had made the lower valuation, this question has arisen, there is no scope for the application of that doctrine. In the present case, the lower valuation can be said to have affected only the interest of the revenue authorities. As the question of the forum was not touched by the valuation that was given, namely, Rs. 15,000, the opposite party's interest was not at all affected. How could it be said, therefore, that the plaintiff had 'approbated' as against the opposite party? If after having given the valuation at Rs. 15,000/-, the plaintiff had tried to go back on that statement in the same proceedings, in respect of the same dispute between it and the revenue authority, there could be scope for saying that it was trying to approbate and reprobate. As against the defendant, there is no scope for application of this doctrine.

10. For all these reasons, I respectfully agree with the view taken in Radhika Nath's case (H), and hold that except where some advantage had been obtained by the person who had made or adopted a lower valuation on the basis of such lower valuation as against the opposite party, the doctrine that a person cannot approbate and reprobate has no application and the person who has made the lower valuation and now seeks to say that that lower valuation is Incorrect is not precluded from showing to the Court what the real valuation is.

11-13. It is necessary, therefore to consider now whether on the basis of the report made by the Subordinate Judge in the present case, it will be proper for us to hold that the value of the suit property was not less than Rs. 20,000 both on the date of the Institution of the suit and on the date of application for this certificate. In coming to his conclusion as regards the value on the date of the institution of the suit, the learned Subordinate Judge has relied mainly on the evidence as regards what was paid as the price of 133 bighas of land, including the land in suit by the present petitioner. He has believed that this sum was actually paid and that even though the land in suit includes some lands of an inferior quality, he thought that ft would be proper to hold that the value of the suit land was about Rs. 1600 per bigha, the rate that works out as the average rate for the entire 133 bighas being sold for a sum of two lac and odd rupees. He took into consideration the different documents on which the defendant relied for the purpose of showing that the value of land in the neighbourhood was in the region of about Rs. 100 per bigha and has given his reasons for not relying on this for ascertaining the value of the land in suit. It was contended by Mr. Mukherjee on behalf of the defendant opposite party that the learned Subordinate Judge was wrong in rejecting these documents for the purpose of coming to a proper valuation of the suit land. (His Lordship then discussed the evidence and concluded as under:--

There is, therefore, in my opinion, no escape from the conclusion that the land in suit was on the date of the purchase by the plaintiff, namely, 6-4-1946, well worth over Rs. 30,000/-. There is nothing to indicate that by the date inFebruary, 1947, when the suit was Instituted there had been any appreciable fall in price. We are, therefore, bound to hold that on the date of the institution of the suit the land in suit was worth well over Rs. 20,000/-.

14. After this finding, it is hardly necessary to consider the evidence in detail as regards the value on the date of application for leave to appeal. It seems to be the common case of both sides that prices of land have increased after the partition of India. It is, therefore, safe in my opinion to say that on the date of the application for leave to appeal, the value of the matter in dispute in appeal is also over Rs. 20,000/-. I have, therefore, come to the conclusion that the application for a certificate under Sub-clause (a), of Article 133(1) of the Constitution should be allowed.

15. Let a certificate under Article 133(1)(a) of the Constitution be made out in the usual form and be issued.

16. The costs of this application will be costs in the Supreme Court Appeal -- the hearing-fee being assessed at five gold mohurs.

H.K. Bose, J.

17. I agree.


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