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Birendra Nath Banerjee and ors. Vs. Shibaram Aditya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appeal No. 15 of 1952
Judge
Reported inAIR1953Cal282
ActsConstitution of India - Article 133; ;Code of Civil Procedure (CPC) , 1908 - Section 110; ;High Court Rules; ;High Court Orders
AppellantBirendra Nath Banerjee and ors.
RespondentShibaram Aditya and ors.
Appellant AdvocateBireswar Chatterjee and ;Gouri Prasad Mukherji, Advs.
Respondent AdvocateAtul Chandra Gupta, ;Surendra Nath Basu (Sr.), ;Nalini Ranjan Bhattacharyya, ;Hemanta Krishna Mittra and ;Jitendra Nath Ghosh, Advs.
DispositionApplication allowed
Excerpt:
- .....to be the amount of the security as provided for by rule 33 of ch. vi of the appellate side rules. mr. gupta pointed out that the suit, out of which the appeal to the supreme court has arisen, was really a combination of five suits in respect of five transactions and although the provisions of the code enabled the plaintiffs to combine all their claims in a single suit, in fact there were several respondents with separate interests, and to limit the security to a sum of rs. 4,000/- would be practically providing no security for the respondents at all. mr. gupta referred to the language of rule 33 of ch. vi of the appellate side rules, as it stands now after the amendment of 1948 and contended that the amended rule authorised the court to direct the appellant to furnish security.....
Judgment:

Chakravartti, C.J.

1. This is an application for leave to appeal to the Supreme Court by the plaintiffs in a suit which they have lost both in the trial Court and in first appeal. The judgment is thus one of affirmance. There is no question that the value of the subject-matter in dispute before the Court of first instance and in dispute in the proposed appeal exceeds Rs. 20,000/-. The only question therefore is whether the proposed appeal involves any substantial question of law.

2. On that point, fortunately, even the respondents agree that the points involved in the appeal are all points of law and at least two of them are certainly substantial. It appears that the properties in question belonged originally to one Sureiidra Nath Mookerjee who died, leaving him surviving a widow named Rakhal Dasi Debi and a daughter named Sin. Avistakarini Debi & five grandsons, who are sons of Avistakarini & who are the plaintiffs in the suit out of which the present appeal arises. Avistakarini propounded a will, said to have been left by her father, Surendra Nath Mokerjee, by which the entire estate was left to her. Probate in respect of the will was granted by the Court of first instance, but on appeal the High Court held the will to be a piece of forgery. Thereafter, an appeal was preferred to the Privy Council by Avistakarini and while that appeal was pending, the parties settled the dispute between themselves by means of two documents. By one of those documents Rakhal Dasi relinquished her claim to the properties on receipt of a monthly maintenance and by another Avistakarini seems to have got an absolute title to the properties concerned. The principal question involved in the appeal is whether the properties could be dealt with in that manner by Avistakarini and Rakhal Desi with the effect of the arrangement being binding upon the plaintiffs, as reversioners. This undoubtedly is a substantial question of law and the respondents agree that it is.

3. There is a further question, also of great importance, which affects only respondents Nos. 1, 1(a), and 1(b). They are mortgagees and it appears that the mortgage loan was taken from them to pay off an earlier mortgage. That earlier mortgage had not been contracted for any legal necessity and the question was whether the later mortgage could be regarded as one justified by legal necessity, even though the earlier mortgage could not be said to be so justified. The trial Court held that since the first mortgage could not be defended on the ground of legal necessity, the second mortgage failed with it. But the High Court held that what was required was pressure on the estate and it was immaterial what caused the pressure, so long as the mortgagees of the second mortgage were not in any way responsible for or parties to the first mortgage. It is admitted that this question also is a substantial question of law. In our opinion the case satisfies the requirements of Article 133, Clauses (a) and (b) of the Constitution as also the same clauses of Section 110, Civil P.C., and accordingly the petitioners are entitled to the certificate they ask for.

4. On behalf of some of the respondents it was contended by Mr. Gupta that in view of the peculiar facts of the case, the appellants should be directed to furnish security of an amount higher than Rs. 4,000/- which is ordinarily to be the amount of the security as provided for by Rule 33 of Ch. VI of the Appellate Side Rules. Mr. Gupta pointed out that the suit, out of which the appeal to the Supreme Court has arisen, was really a combination of five suits in respect of five transactions and although the provisions of the Code enabled the plaintiffs to combine all their claims in a single suit, in fact there were several respondents with separate interests, and to limit the security to a sum of Rs. 4,000/- would be practically providing no security for the respondents at all. Mr. Gupta referred to the language of Rule 33 of Ch. VI of the Appellate Side Rules, as it stands now after the amendment of 1948 and contended that the amended rule authorised the Court to direct the appellant to furnish security for amounts higher than Rs. 4,000/-. Reference was made to the adverb 'ordinarily', which was introduced in the rule by the amendment of 1948 and it was contended that the effect of that adverb was to make the amount of the security elastic and to leave it to the discretion of the Court to fix the security at that figure or at a higher or a lower sum as it might deem fit to determine. Mr. Gupta endeavoured to support his contention by reference to the two provisos to Rule 33.

5. As the true intention of the rule is not too clear, we took the liberty of making some investigation as to the origin of the amendment, but it will not be proper to refer to the history of the rule for the purpose of interpreting the true meaning of the words used. The contention of Mr. Gupta is that the words 'shall ordinarily consist of cash or Government securities to the value of Rs. 4,000/- in each appeal' can only mean that Rs. 4,000/- is no longer to be the one fixed amount prescribed by the rule, but the amount may be varied according to the circumstances of each case. The difficulty in the way of accepting that construction, in my view, is caused by the very first proviso which follows. That proviso, in its first part, states that in analogous cases the Court may reduce such security for each successive appeal after the first one to any smaller amount, or may direct that a consolidated security of Rs. 4,000/- be furnished for the entire group of analogous appeals. Even if Mr. Gupta's construction of the main rule be the right one, there may be some room for the second part of the first proviso; but I do not see why it was necessary to provide specifically that the Court might reduce the amount of the security for each successive appeal after the first, if the word 'ordinarily', occurring in the main rule itself, authorised the Court to direct a smaller sum than Rs. 4,000/- to be offered. I do not say that the construction suggested by Mr. Gupta of the main rule is not a plausible one, but if a provision is going to impose a new and a higher burden on the appellant, I should certainly insist on clearer words being used. The language in which the amended rule has been expressed is certainly not the clearest that it could be, but it appears to me that the word 'ordinarily' was used in the main rule in order to mark off cases where there was a single appeal & the first proviso was added to deal with what I might call 'extraordinary cases', namely, cases where there were more than one appeal, grouped together as analogous appeals. In the first case, Rs. 4,000/- still remains the amount of the security. In the second case, the Court is given power either to reduce the amount of the security in the case of all appeals other than the first one, or to fix a consolidated security of Rs. 4,000/-. While I am not accepting Mr. Gupta's construction I cannot say that the construction which I am suggesting is very satisfactory, because ordinarily I should not expect a proviso to be used for the purpose which my construction assigns to the proviso. But if a provision which is imposing a financial burden on the suitor is expressed in obscure language, the suitor must have the benefit of the obscurity. For those reasons, I am of opinion that Rule 33 of Ch. VI of the Appellate Side Rules, as it now stands, does not authorise the Court to fix a higher amount of security because of the special circumstances of a case.

6. Mr. Gupta contended that if such were the effect of the rule even after the amendment, some further amendment was clearly called for and necessity of such amendment was powerfully illustrated by the facts of the present case. I am disposed to agree with Mr. Gupta that some further amendment of the rule might usefully be made. But at the same time we need not forget that the effect of those provisions of the Code which enable a party to combine several claims in one suit is to relieve him to a very substantial extent of the financial burden which he would have to bear if he brought separate suits on each cause of action. If he is getting the benefit of the joinder of the claims at the stage of the Supreme Court Appeal, such benefit is not inconsistent with what he got even at the stage of bringing the suit. I do not therefore feel prepared to accede to the argument of Mr. Gupta.

7. In the result, the certificate asked for is granted. Let a certificate issue that as regards valuation and the existence of a substantial question of law, the case satisfies the requirements of Article 133(1), Clauses (a) and (b) of the Constitution of India and that accordingly the petitioners are entitled to prefer an appeal to the Supreme Court. The costs will be costs in the appeal to the Supreme Court the hearing-fee being assessed at three gold mohurs.

S.R. Das Gupta, J.

8. I agree.


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