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Ramu Vs. Rana Vidya Bhushan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 198 of 1960
Judge
Reported inAIR1961HP27
ActsConstitution of India - Article 133(1)
AppellantRamu
RespondentRana Vidya Bhushan Singh and anr.
Appellant Advocate Thakar Das, Adv.
Respondent Advocate Tek Chand, Adv.
Cases ReferredMuhammad Mahrabkhan v. Dur Mohammad Khan
Excerpt:
.....article 133 (1) can apply to instant case - sub-clause (a) cannot be invoked as amount or value of subject-matter in dispute in court of first instance and on appeal was and is less than rs. 20000 - petitioner contended that as value of property in which tenancy rights are sought to be claimed by petitioner is more than rs. 30000 he has right to prefer appeal to supreme court - as petitioner failed to alleged that value of tenancy rights claimed in disputed property was rs. 20000 or more petitioner has no right to file appeal to supreme court by virtue of sub-clause (b) - as per sub-clause (c) where case does not involve any question of legal importance it will not be fit case for being certified - ie. certificate of fitness cannot be issued for questioning either findings or of..........final order, the appeal must involve some substantial question of law.'' 4. since the judgment and decree appealed against varied the decree of the court of first instance, the petitioner will have a right of appeal to-the hon'ble supreme court if either sub-clause (a) or (b) of article 133 (1) can apply to the instant case., on behalf of the petitioner, it was conceded that sub-clause (a) cannot be invoked in his aid for the amount or value of the subject-matter in dispute in the court of first instance and on appeal was and is less than rs. 20,000/-.5. it has next to be seen if sub-clause (b) can be availed of by the petitioner. it has been alleged in paragraph 9 of the petition that the value of the property involved in the appeal was more than rs. 30,000/- and an affidavit has also.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This is a petition for obtaining a certificate of fitness for appeal to the Hon'ble Supreme Court against the judgment and decree of this Court in Regular First Appeal No. 5 of 1958 in part dismissing the appeal filed by the petitioner. The respondents had filed a suit for recovery of possession of the property detailed in the plaint and for recovery of Rs. 7,200/- as past mesne profits.

The main allegations were that respondent No. 1 was the owner and respondent No. 2 was the tenant of the disputed land and that the petitioner had taken forcible possession of the said land in 1950, The defence, in the main, was that the petitioner was the tenant of the disputed land and the suit was not entertainable by a civil Court and that the damages claimed were in any case excessive.

The trial Court decreed the suit for recovery of possession and for a sum of Rs. 6,995/- as past mesne profits. On appeal, the decree passed was modified to this extent only that the claim for mesne profits was decreed for recovery of a sum of Rs. 4,372/- and the parties were made to receive and pay costs in proportion to success and failure.

2. The plaintiffs-respondents had for the purposes of jurisdiction valued the relief for recovery of possession at Rs. 3,210/15/- and the relief for mesne profits at Rs. 7,200/-. The petitioner had fixed the value of the appeal for purposes of jurisdiction at Rs. 9,915/-, although in view of the reliefs claimed the value should have been fixed at Rs. 8,065/5/-, i.e. Rs. 1070/5 re: relief for possession and Rs. 6,995/- re: the relief for mesne profits.

3. The relevant portions of Article 133 of the Constitution of India and of Sections 109 and 110, Civil Procedure Code, run as below:--

'(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject-matter of the dispute in the Court of first instance, and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly Or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to theSupreme Court;

and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law'.

'109. Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court.

(a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;

(b) from any judgment decree or final order passed by a High Court in the exercise of original civil jurisdiction.''

'110. In each of the cases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the court of first instance must be twenty thousand rupees on upwards, and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards.

or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value.

and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree Or final order, the appeal must involve some substantial question of law.''

4. Since the judgment and decree appealed against varied the decree of the Court of first instance, the petitioner will have a right of appeal to-the Hon'ble Supreme Court if either Sub-clause (a) or (b) of Article 133 (1) can apply to the instant case., On behalf of the petitioner, it was conceded that Sub-clause (a) cannot be invoked in his aid for the amount or value of the subject-matter in dispute in the court of first instance and on appeal was and is less than Rs. 20,000/-.

5. It has next to be seen if Sub-clause (b) can be availed of by the petitioner. It has been alleged in paragraph 9 of the petition that the value of the property involved in the appeal was more than Rs. 30,000/- and an affidavit has also been filed indicating that the market value of 329 bighas of land in dispute was Rs. 30,000/-.

6. The contention advanced on behalf of the petitioner has been that as the value of the property in which tenancy rights are sought to be claimed by the petitioner is more than Rs. 30,000/-, he has a right to prefer an appeal to the Hon'ble Supreme Court. On behalf of the respondents, onthe other hand, it has been contended that for purposes of Sub-clause (b) the property which is the subject-matter of dispute in the case cannot be taken into consideration inasmuch as the properly contemplated by that sub-clause is a property other than the one which is the subject-matter of dispute in the case and secondly that the said sub-clause cannot apply as the value of the tenancy rights in the disputed property has not been proved to be Rs. 20,000/- or upwards.

There is a conflict of judicial opinion on the interpretation of the aforesaid Sub-clause (b). One view is that if the property to which claim or question relates is worth Rs. 20,000/-, the requirements of Sub-clause (b) are satisfied vide, Central Talkies v. Lala Dwarka Prasad, (S) AIR 1956 All 348.

7. The other view is that in order to attract the aforesaid sub-clause the judgment etc. should involve rights and claims to property which rights and claims are worth Rs. 20,000/- and upwards, vide Sudaman Prasad v. Mohd. Abdul Alim, AIR 1941 Oudh 407, Prag Narain Trivedi v. Mt. Fakhrul Nisa, AIR 1942 Oudh 174, Dhanna Mal v. Lala Moti Sagar, AIR 1923 Lah 286(2), Appala Raja v. Rangappa Naicker, AIR 1918 Mad 632 and Galliara v. Murugappa Chetty, AIR 1934 Rang 292.

The aforesaid rulings were based on an interpretation of second part of Section 110, Civil P. C., but as there is no material difference between the phraseology of Sub-clause (b) of Article 133 of the Constitution and the second paragraph of Section 110, Civil P. C., those cases may well be considered.

8. The reasoning which found favour with the Allahabad High Court in (S) AIR 1956 All 348, referred to above, was that the words 'of the like amount or value' govern property and as such it was the amount or value of the property that was to be looked into and not the amount or value of the claim or right involved. The aforesaid, at first blush, appears as a very attractive reasoning in view of the proximity of the word 'property' to the words 'like amount or value', but on closer scrutiny it would appear that the other view is more sound.

9. In AIR 1918 Mad 632, referred to above, Spencer, J,,, had observed as below:--

'In De Silva v. Silva, (6 Bom LR 403) an extreme case was suggested of a suit for a share of the value of Rs. 100/- in an estate of the value of Rs. 10,000/- being taken to the Privy Council. It was considered by the Court that if such an interpretation were placed upon the section it would defeat the object of the section which is to prevent small claims from going to the Privy Council. I consider that it was not intended by the Legislature that claims of trifling value should be taken up to the Privy Council unless the property directly or indirectly involved in the result of the litigation is of Rs. 10,000/- in value or upwards and unless some substantial question relating to right, title and interest in such property is directly or indirectly decided thereby. I do not think it can have been intended that when some subsidiary interest, such as an easement of inconsiderable value attached to property of great value, is in dispute the value of the property affected rather than the value of the subject-matter of the suit should determine the right of appeal. Theclaim must be one 'to or respecting property' of Rs. 10,000/- in value, not a claim merely affecting the property of such value.

10. In AIR 1934 Rang 292, it was held that under Section 110 it is the extent to which the decree or order has operated to the prejudice of the applicant that determines whether the decree or order is subject to appeal or not, and whatever may be the value of the property in respect of which a claim or question is involved in the appeal, no appeal lies under Section 110 unless the value of the loss or detriment which the applicant has suffered by the passing of the decree or order and from which he seeks to be relieved by His Majesty-in-Council is Rs. 10,000/- or upwards.

11. In the case reported in Subramania Ayyar v. Sellammal, ILR 39 Mad 843: (AIR 1916 Mad 985) it was held by Wallis, C, J., that the words 'involve directly' contained in second paragraph ot Section 110 of the Code cannot be read as including cases which involved nothing but the actual subject-matter in dispute in the appeal, and by Srinivasa Ayyangar, J., that if the operation of the decision is confined only to the particular object matter in the suit Clause 2 of Section 110 does not apply, but if the decision, beyond awarding relief in respect of the particular object matter of the suit, affects rights 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.

12. The aforesaid decision was approved the contrary opinion expressed in some of the Calcutta cases was not favoured by their Lordships of the Judicial Committee in the case of Mangamma v. Mahalakshmamma, AIR 1930 PC 44.

13. If Sub-clause (b) is interpreted in the manner urged on behalf of the petitioner the result will be that even though the value of the subject-matter in dispute may not touch the prescribed minimum as laid down in Sub-clause (a), there will be a right of appeal if the judgment or decree etc. involved a claim or question respecting property irrespective of such property being the subject-matter of dispute or not and of the amount or value of the claim or question. Such an interpretation will virtually render Sub-clause (a) redundant and it is a well, established canon of interpretation that one provision of a statute should not be so construed as to render any other provision of it redundant or nugatory.

14. Although it is not for the Courts to scan the wisdom Or policy of the legislature yet it is a matter worth consideration as to why should the value of property be taken into account for purposes of Sub-clause (b) when for the purposes of Sub-clause (a) the amount or value of the subject matter in dispute is to be the governing factor.

15. It would thus appear that before Sub-clause (b) can come into play the judgment, decree or final order must involve a claim or question respecting property additional to the subject-matter in dispute and secondly that the total amount or value of the claim or question respecting such other property and of the subject-matter in dispute be not less than Rs. 20,000/-.

16. It has not been alleged by the petitioner that the value of the tenancy rights claimed in the disputed property was Rs. 20,000/- or rnore, I am, therefore, of the opinion that the petitioner has not a right to file an appeal to the Hon'ble Supreme Court by virtue of Sub-clause (b).

17. It only remains to be seen if under Sub-clause (c) the case can be certified to be a fit one for appeal.

18. Sub-clause (c) has been the subject-matter of interpretation in several cases and it has been held that where a case does not involve any question of legal importance, it will not be a fit case for being certified and that a question of law or even that a substantial question of law is involved does not necessarily warrant the issue of a certificate of fitness and that it is further necessary that the question involved must be of general or public or private importance, vide Himatsingha Timber Co. Ltd. v. Kumudini Datta, AIR 1953 Assam 70, Lachhman Prasad v. Govt. of Bihar, AIR 1952 Pat 886 : 1952 Cri LJ 1639, Rayarappen Nayanar v. Madhavi Amma, AIR 1950 Mad 215 and Phoolchand v. Badri Prasad, AIR 1953 Raj 51 (FB). It would thus appear that the certificate of fitness cannot be issued for questioning either findings of fact or of questions of law which are not of general or public or private importance.

19. The grounds on which an appeal is proposed to be filed to the Hon'ble Supreme Court have been appended to the petition under consideration. It will appear therefrom that, in the main, the following questions of law are proposed to be raised: (i) that the principle of estoppel did not operate as a bar to the putting forward of the plea that the relief for recovery of possession of the disputed property was not cognizable by a civil Court; (ii) that the claim for damages was exclusively entertainable by a revenue Court, and (iii) that the conferment of the occupancy rights by respondent No. 1 in favour of respondent No. 2 was in contravention of the provisions of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. None of the aforesaid questions is of general or public importance.

20. Section 14 and sub-section (3) of Section 77 of the Punjab Tenancy Act substantially correspond to Section 30 and sub-sections (3) and (4) of Section 111 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, and there is a divergence of opinion between this Court and the Punjab Courts on the correct interpretation of those sections, vide Ghunamal v. Jhanda Singh, 82 Pun Re 1894 p. 278; Joti Pershad v. Gajju, 114 Pun Re 1891; Ganeshamal v. Ibrahim, AIR 1919 Lah 237(2) and Devi Ram v. Murli, AIR 1953 Him Pra 89.

On behalf of the petitioner it was urged that on account of the aforesaid conflict the case should be certified to be a fit one for appeal to the Hon'ble Supreme Court and in support of that contention reliance was placed upon a Full Bench ruling of the Madras High Court, reported in, Subba Rao v. Veeraju, AIR 1951 Mad 969 wherein it was held that even if a question of law is not important if there is room for reasonable doubt or difference of opinion on the question, then itwould be a substantial question of law within the meaning of Article 133 of the Constitution of India. On behalf of the respondents, on the other hand, reliance was placed upon the ruling of the Assam High Court, reported in AIR 1953 Assam 70 and by the Sind Judicial Commissioner's Court, reported in. Muhammad Mahrabkhan v. Dur Mohammad Khan, AIR 1937 Sind 217 wherein it was held that the fact that different High Courts hold divergent views regarding the question involved is by itself no ground for certifying a case as fit for special leave.

21. Although AIR 1951 Mad 969 (FB), referred to above, was not concerned with the interpretation of Sub-clause (c) rather the words 'substantial question of law' as used in the last portion of Clause (1) were interpreted in that case. The observations made by the learned Chief Justice, who delivered the judgment of the Full Bench, are apposite to the question under consideration. At page 973, the following observations were made by him:--

'If the principle to be applied or the point of law arising in the case is not well established, then certainly that would be a substantial question of law. With great respect to the learned Judges who appear to hold to the contrary, I am of the opinion that if there is conflict of judicial opinion among the High Courts and there is no direct decision of the highest Court on any question of law, then that would be a substantial question of law, though the decision of the particular High Courts of which leave is sought might have been uniform on the question. That fact may be a very good ground for dismissing a second appeal if the lower Courts had followed the rulings of the High Court but for an application for leave to appeal to the Supreme Court, I think the very fact of divergence of opinion among the High Courts is conclusive evidence of the existence of a substantial question of law.' With great respect to the Hon'ble Chief Justice, I find myself in agreement with the observations'! made by him and it appears to me that if on a question of law there is a divergence of opinion between two or more High Courts and there is no authoritative pronouncement of the highest Court of the land on that question, a case involving such a question may be certified to be a fit one for appeal to the Hon'ble Supreme Court.

22. In view of the conflict of opinion between this Court and the Punjab Courts on the correct interpretation of Section 14 of the Punjab Tenancy Act substantially corresponding to Section 30 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the instant case is certified to be a fit one for appeal to the Hon'ble Supreme Court.


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