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Punam Chand Daga Vs. Subhakaran Dassani - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appeals Nos. 82 to 90 of 1967
Judge
Reported inAIR1969Cal547
ActsConstitution of India - Article 133(1); ;Code of Civil Procedure (CPC) - Order 45, Rule 4
AppellantPunam Chand Daga
RespondentSubhakaran Dassani
Appellant AdvocateCharu Chandra Ganguli, Adv.
Respondent AdvocateSachindra Chandra Das Gupta and ;Birendra Nath Banerjee, Advs.
DispositionApplications dismissed
Cases ReferredIn Banarasi Parshad v. Kashikrishen
Excerpt:
- .....a proposed appeal there is no claim or question raised respecting property other than the subject-matter, clause (a) will apply; if there is involved in the appeal a claim or question respecting property of an amount or value not less than rs. 20,000 in addition to or other than the subject-matter of the dispute clause (b) will apply.' in the present case, nobody contends that apart from the subject-matter of the dispute, there was any claim or question respecting any other property. the petitioner admittedly does not put up any claim to any property other than the rooms which he used to hold under his various tenancies. therefore, the circumstances of these appeals are such that clause (a) of article 133(1) was attracted and not clause (b). mr. ganguli, however, clearly indicated that.....
Judgment:

A.K. Mukherjea, J.

1. These are nine applications for certificates under Article 133(1)(b) and (c) of the Constitution of India for appeal to the Supreme Court. The applications arise in the following circumstances.

2. The petitioner is a monthly tenant under the opposite party in respect of nine tenancies. All the nine tenancies are in respect of different rooms in premises No. 36, Shibtolla Street, Calcutta. The petitioner's landlord served nine ejectment notices in respect of these nine tenancies. As the petitioner failed or omitted to quit and vacate the premises, nine suits for ejectment were filed against him. All the nine suits were tried together and one judgment was delivered covering all the nine suits in November 1959. All the suits were decreed and the petitioner was given three years' time to vacate the premises. The petitioner preferred nine appeals from the original decrees in all the nine suits and on his prayer the appeals were heard analogously by the Court of appeal consisting of my Lord the Chief Justice and myself. All the nine appeals were dismissed with costs by one judgment dated 30th May, 1967. The petitioner now proposes to appeal to the Supreme Court against that judgment and has made the present applications. During the pendency of the applications, the petitioner made another application praying that for the purposes of pecuniary Valuation, there should be an order for Consolidation of these nine applications under Order 45, Rule 4 of the Code of Civil Procedure.

3. Order 45, Rule 4 provides that for the purpose of pecuniary valuation, suits Involving substantially the same questions for determination and decided by the same judgment may be consolidated. In a Full Bench judgment of the Madras High Court in Lakshminarasimha v. Ratnam, AIR 1949 Mad 739 (FB), it was held that where several suits, out of which several appeals arise involving the same questions, were decided by the trial Court by almost the same judgment (though separate judgments were, in fact delivered) and by a common judgment in the first and second appeals, consolidation should be ordered for pecuniary jurisdiction. Nine appeals of the petitioner which were decided by us arise out of almost the same facts. The questions that we decided were also practically of the same nature. From that point of view, there cannot be any objection to consolidation of the nine applications pending before us. But there is one consideration for which we cannot allow this consolidation under Order 45, Rule 4 of the Code of Civil Procedure. All the nine applications before us have been made under Article 133(1)(b) and (c). None of the applications is under Article 133(1)(a). Though this is quite clear from the cause title of the pplications, we put a specific question on this point to Mr. Ganguli who moved the applications. He told us categorically that his applications were under Article 133(1)(b) and also under Article 133(1)(c). We had this statement of Mr. Ganguli recorded by a Minute.

4. Now so far as applications under Article 133(1)(c) are concerned, there is no question of valuation involved. The question of valuation arises only in connection with applications under Clause (a) or (b) of Article 133(1) of the Constitution. Under Article 133(1)(a), one is concerned with the value of the subject-matter of the dispute in the Court of first instance and also on appeal. But in an application under Article 133(1)(b) one is concerned with the value of the property in respect of which some claim or question is directly or indirectly involved in the judgment, decree or final order against which the appeal is sought to be made. There is a clear distinction between the nature of the valuation that is to be satisfied in respect of the applications under these two clauses. Under Clause (a), we have to find out the pecuniary value of the subject-matter of dispute both in the Court of first instance and in the Court of Appeal. Therefore, it may be of considerable importance to a petitioner who has lost in more than one suit, if he could have the values of the different subject-matters of the disputes added up for the purpose of valuation of his appeals. In the present case, for instance, the petitioner's tenancies related to various portions of the same building. Taking the value of his tenancies separately, it may be that the value of each of these tenancies is insignificant, but if they are added up, the valuation may increase significantly. Under Clause (b), however, we are not concerned with the value of the subject-matter in dispute. We are there concerned with the value of a property in respect of which some claim or dispute is involved in the order or judgment or decree. In the instant case, even if the petitioner were permitted to take the value of the entire building in which he was occupying various portions under various tenancies, it would not be permissible for him to multiply the value of the building nine times on the ground that the various orders against which the petitioner proposes to appeal relate to claims in respect of portions of the same building. That value can only be taken once. Therefore, in the case of an application under Article 133(1)(b) the petitioner does not stand to gain even if he is allowed to consolidate the appeals or applications. Therefore, there is no justification in passing an order of consolidation of the nine applications for leave to appeal. It is well known that the power to consolidate is discretionary. There can be no justification for exercising this discretion, unless such exercise can be of benefit to the petitioner. In this view of the matter, we dismiss the application asking for consolidation of the nine applications for certificate without any order as to costs.

5. We shall now consider the merits of the applications. All the applications relate to the same question though the individual values of the subject-matters of the nine appeals were different. It would be enough if we take that appeal in respect of which the valuation of the subject-matter in the trial Court and in the Court of appeal were the highest. Suit No. 1481 of 1958 corresponding to appeal No. 56 of 1960 was valued at Rs. 450/-, the valuation of the other suits and appeals was considerably lower than this and ranged between Rs. 45/- and its. 300/-.

6. Mr. Ganguli, appearing for the petitioner, contended that for the purposes of pecuniary jurisdiction we should not take the valuation of the suits or appeals to be decisive and that we should find out for ourselves the value of the property to which the disputes relate. Mr. Ganguli suggested that though for the purposes of valuation of ejectment suits only one year's rental value of the property in dispute is taken, in an application for certificate under Article 133 of the Constitution, we would take twenty times the value of the annual rental. Mr. Ganguli relied on the case of Kastur Bhai Manibhal Nagarseth v. Hiralal D. Nanavati, AIR 1923 Bom 23 (1). A Division Bench of the Bombay High Court held that where in an ejectment suit, the monthly rent o the premises was Rs. 275/-, the capitalised value at twenty years' purchase of the property being over Rs. 10,000/-, a certificate to appeal to Privy Council against the decree in the suit must be granted. The judgment does not give any reason why the valuation of the property should be made on, that basis. Apart from this judgment, Mr. Ganguli could not give us any other authority for the proposition that the value of tenancy is to he ascertained by multiplying twenty times the annual rental of the premises in tenancy.

7. Mr. Das Gupta, appearing for the opposite party, took a preliminary objection to these applications. He contended that no application under Article 133(1)(b) of the Constitution is maintainable in view of the nature of the property right claimed by the petitioner. Mr. Das Gupta contended that property in Clause (b) refers to some claim or question respecting property additional to or other than the actual subject-matter in dispute and since the petitioner in this case does not claim any right additional to his right of tenancy, he cannot make an application under Sub-clause (b) of Article 133(1). In our opinion, this objection of Mr. Das Gupta is of substance. Mr. Das Gupta's contention seems to have been supported by various decisions of Andhra Pradesh, Bombay, Calcutta and Nagpur High Courts. In the case of Ram Baran Prasad y. Ram Mohit Hazra, : AIR1961Cal537 , a judgment of a Division Bench of this High Court presided over by Lahiri, C. J., it was held that in order to come under Clause (b) it is necessary for the petitioner to prove that the decision complained of affects directly or indirectly some claim or question respecting property which is not the subject-matter of the suit. Unless the decision affects a claim or property other than the claim in property in dispute. Clause (b) does not come into operation. In view of a recent Supreme Court decision on this point, the matter now seems to have been decided conclusively. In Chittarmal v. Shah Pannalal Chandulal, : [1965]2SCR751 , the Supreme Court had to consider the conditions that attract the application of the two Sub-clauses of Article 133(1). Shah, J. in delivering the judgment of the Supreme Court observed as follows:

'To attract the application of Article 133(1)(b) it is essential that there must be omitting from consideration other conditions not material -- a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less than Rs. 20,000/-The variation in the language used in Clauses (a) and (b) of Article 133(1) pointedly highlights the conditions which attract the application of the two clauses. Under Clause (a) what is decisive is the amount or value of the subject-matter in the Court of first instance and still in dispute in appeal to the Supreme Court; under Clause (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from. The expression 'property' is not defined in the Code, but having regard to the use of the expression 'amount' it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, Clause (a) will apply; if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject-matter of the dispute Clause (b) will apply.'

In the present case, nobody contends that apart from the subject-matter of the dispute, there was any claim or question respecting any other property. The petitioner admittedly does not put up any claim to any property other than the rooms which he used to hold under his various tenancies. Therefore, the circumstances of these appeals are such that Clause (a) of Article 133(1) was attracted and not Clause (b). Mr. Ganguli, however, clearly indicated that his application was under Clause (b). In this view of the matter, we must hold that these applications are misconceived.

8. In any event, since the petitioner does not put up a claim regarding the building other than his tenancy rights, we cannot take the value of the building for the purpose of pecuniary jurisdiction. We must, therefore, hold that the petitioner has failed to satisfy the valuation test. As the petitioner failed in the valuation test, it is not necessary for us to consider whether there was any substantial question of law involved. But we prefer to indicate that, in our opinion, no substantial question of law is involved in any of the appeals. The suits as well as the appeals were decided purely on questions of fact. Mr. Ganguli sought to make out that these appeals involve a substantial question of law in the following manner. At the time of hearing of the appeal, the appellant had taken a point that though the notices in the nine suits contained a threat of suit, the notices did not disclose the grounds on which the landlord claims to be entitled to file the suits for recovery of possession against the tenant. Now in the Full Bench decision in Suryya Properties Private Ltd. v. B. N. Sarkar, : AIR1964Cal1 the Full Bench of this High Court has categorically laid down that no such grounds need be stated in the notices. Mr. Ganguli drew our attention to a Division Bench judgment in which this Full Bench decision has been practically ignored. We did not agree to follow the Division Bench judgment. On the other hand, we considered ourselves bound to follow the unequivocal and categorical pronouncements of the Full Bench. We fail to see how any substantial question of law can have arisen in this situation. A Full Bench decision is always binding on a Division Bench unless and until the Full Bench decision is overruled by the Supreme Court. We are, therefore, not prepared to accept Mr. Ganguli's contention that this matter involves a substantial question of law and that the applications should be allowed.

9. Now we propose to deal with the merits of the applications under Clause (c) of Article 133(1). It is quite well known that a certificate as to fitness under Sub-clause (c) should not be granted unless the question that is raised is a question of great public or private importance. In Banarasi Parshad v. Kashikrishen, Narain, (1901) ILR 23 All 227 (PC) Lord Hobhouse delivering the judgment of the Privy Council indicated what were the considerations in deciding an application for leave to appeal on the ground that it is a fit case for appeal. The Privy Council was, of course, dealing in that case with analogous provisions of the Civil Procedure Code. It was held that this clause is intended to meet very special cases when the point in dispute cannot be measured in money but is one of great public importance. We do not think that these applications before us raise any question which is either of great public or private importance. There are thousands of litigations fought out every day between landlords and tenants and it is difficult to say that all such cases are matters of great public or private importance.

10. In the result, we are of the opinion that the petitioner has failed either to satisfy the valuation test or to satisfy the other conditions to be entitled to a certificate either under Clause (b) or (c) of Article 133(1). We, therefore, dismiss these applications. We make no order as to costs. Stay granted for six weeks provided all costs and arrears, if any, are paid within a week.

Sinha, C. J.

11. I agree.


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