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Guddu Mal and anr. Vs. AmIn Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 33 of 1952
Judge
Reported inAIR1954HP24
ActsConstitution of India - Article 133(1); ;Code of Civil Procedure (CPC) - Sections 109 and 115
AppellantGuddu Mal and anr.
RespondentAmIn Chand and ors.
Appellant Advocate Man Mohan Nath, Adv.
Respondent Advocate Rattan Chand Sud, Adv.
DispositionApplication allowed
Cases ReferredMt. Murtu v. Paras Ram
Excerpt:
- .....shown. and there is no doubt that fitness of the case must be considered with regard to the point or points that will arise for determination before the hon'ble the supreme court, and not with regard to the point or points which will not arise there but which mayarise in this court or in the courts below ifon a disagreement with the decision of this court the hon'ble the supreme court were to remand the case. i am unable, therefore, to hold that this is a fit case for a certificate offitness for appeal under article 133(1)(c) of theconstitution.9. the learned counsel for the petitioners cited a number of cases. these were cases reported in--'joychand lal v. kamalaksha', air 1949 pc 239 (c);--secretary of state v. mask & co., air 1939 mad 95 (d);--'mt. gulab bai v. mt. manphool.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is an application by Guddu Mal and Thunia Mal under Articles 132 and 133 of the Constitution for the grant of a certifi- cate to enable them to appeal to the Hon'ble the Supreme Court against the order of this Court dated 14-11-1952 dismissing their revision petition.

2. The respondent Amin Chand obtained against them a decree for Rs. 6,000/- odd from the Court of the District Judge at Koti on 29-6-1948. The present petitioners, as defendants in that suit, filed an appeal against the decree on 30-9-1948 in this Court. The then Judicial Commissioner, who was also invested with the powers of a Judicial Committee under the States Courts Act, 1943, transferred the appeal to himself as Judicial Committee by an order dated 17-5-1949, acting under a notification of the Chief Commissioner dated 14-1-1949, and decided it as such on 24-5-1949, recommending to the Chief Commissioner that the appeal be dismissed. The Chief Commissioner, acting on that recommendation, dismissed the appeal on 8-6-1949.

3. On 15-10-1949 the present petitioners filed a suit in the Court of the Senior Subordinate Judge Mahasu for a declaration that the order of this Court dated 17-5-1949 and the proceedings subsequent thereto, including the dismissal order of the Chief Commissioner dated 8-6-1949, were without jurisdiction and therefore not binding on them. The suit was dismissed by the trial Court on 30-5-1951, and the appeal of the plaintiffs (the present petitioners) was dismissed by the District Judge on 14-9-1951. From this latter decision they filed the aforesaid revision which was dismissed by this Court on 14-11-1952, and they now want to appeal to the Supreme Court.

4. As no question of law as to the interpretation of the Constitution is involved, and as the monetary reauirements of sub-cls. (a) and (b) of Clause (1) of Article 133 are not fulfilled, the Learned counsel for the petitioners has had to confine himself to Sub-clause (c). It has, therefore, to be seen whether the case is a fit one for appeal to the Supreme Court. The application has been opposed by the respondent Amin Chand.

5. The aforesaid appeal was dismissed by the District Judge on two grounds. Firstly, he entered into the merits of the order of this Court dated 17-5-1949 and held that it was a correct one. Secondly, he held on the authority of--'Fariduddin Ahmad v. Murtaza Ali Khan', AIR 1936 Oudh 67 (A), that no subordinate Court had the jurisdiction to declare a decision of the Judicial Committee to be illegal or void.

6. In the revision in this Court against the judgment and decree of the District Judge, dated 14-9-1951, it was urged on behalf of the petitioners that the order of this Court dated 17-5-1949 was illegal and without jurisdiction. This Court held that it was not necessary to decide the point Since it had no power to interfere in exercise of its revisional jurisdiction. The contention of the petitioners in that revision was that the District Judge had failed to exercise jurisdiction vested in him by law by coming to the finding that he and the trial Court had no jurisdiction to declare the decision of the Judicial Committee to be void or illegal.

This contention was repelled and it was held on the authority of the said Oudh ruling that he had no jurisdiction to declare the decision of the Judicial Committee to be illegal. Thepetitioners thus having failed to show that the lower appellate Court had failed to exercise a jurisdiction vested in it, the revision-was dismissed. In these circumstances, can it be said that this is a fit case for appeal to the Hon'ble the Supreme Court

7. Now, it was held with reference to this, requirement of fitness in--'Banarsi Prasad v. Kashi Krishna', 28 Ind App 11 at p. 13 (PC) (B),

'That it is clearly intended to meet special.cases--such, for example, as those inwhich the point in dispute is not measurableby money, though it may be of great publicor private importance.'

The only point decided by this Court in the revision was that the petitioners had failed to show that the lower appellate Court had failed to exercise a jurisdiction vested in it by law. This point cannot be said to be of great public or private importance. It does not even : involve some substantial question of law since the point is not one in respect of which there exists any difference of opinion but is well-settled, although the mere existence of a substantial question of law would not be sufficient to give this Court jurisdiction to grant leave to appeal under Article 133(1) (c) on the ground of fitness of the case for appeal to the Supreme Court.

8. The learned counsel for the petitioners did not urge, be it noted, that the decision of the aforesaid point by this Court in the revision rendered this a fit case for appeal to the Supreme Court. His contention was that the point which was of great public or private importance was whether this Court had the jurisdiction to transfer the appeal to itself as Judicial Committee by the said order dated 17-5-1949, the contention of the learned counsel being that it had no Such jurisdiction inasmuch as the notification of the Chief Commissioner dated 14-1-1949 on which this Court acted in passing that order was ultra vires and illegal. He further urged that this point will be deemed to have been decided by this Court in the revision.

I am unable to agree with this contention, 'for, as specifically stated in my judgment in the revision, the petitioners had failed to pave the way for an adjudication upon the merits of the order dated 17-5-1949 by failing to show that the lower appellate Court had failed to exercise a jurisdiction vested in it by law. In other words, the preliminary objection as to this Court having no power to interfere in revision having been decided against the petitioners, the question of whether the order dated 17-5-1949 was illegal did not arise. That being so, the only point decided by this Court in the revision, and the only point therefore which will arise for determination before the Hcn'ble the Supreme Court, if the certificate prayed for were to be granted, is: Whether the petitioners had not succeeded in showing that the lower appellate Court had failed to exercise a jurisdiction vested in it by law?

This question does not render the case a fit one for appeal to the Hon'ble the Supreme Court, as already shown. And there is no doubt that fitness of the case must be considered with regard to the point or points that will arise for determination before the Hon'ble the Supreme Court, and not with regard to the point or points which will not arise there but which mayarise in this Court or in the Courts below ifon a disagreement with the decision of this Court the Hon'ble the Supreme Court were to remand the case. I am unable, therefore, to hold that this is a fit case for a certificate offitness for appeal under Article 133(1)(c) of theConstitution.

9. The learned counsel for the petitioners cited a number of cases. These were cases reported in--'Joychand Lal v. Kamalaksha', AIR 1949 PC 239 (C);--Secretary of State v. Mask & Co., AIR 1939 Mad 95 (D);--'Mt. Gulab Bai v. Mt. Manphool Bai', AIR 1953 Raj 42 (FB) (E);--'Har Kishan Das v. Satgur Prasad', AIR 1953 All 129 (F);--'Mahim Chan-dra v. Union of India', AIR 1953 Assam 101 (G);--'Guman Mal v. Achal Chand', AIR 1953 Aj-mer 10 (H) and--'Mt. Murtu v. Paras Ram', AIR 1952 Him P. 14 (I). None of them is of any help to the petitioners. The Privy Council appeal was filed from an order of the HighCourt in its revisional jurisdiction, but the question that came up - for decision before their Lordships of the Privy Council was also the question that had been decided by the High Court, and that question was not as regards the jurisdiction under Section 115, Civil P. C., but the question whether or not the loan in thatcase was a commercial loan to which the Bengal Money-lenders Act, 1940, applied, a question of obvious public importance.

10. In AIR 1939 Mad 95 (D) certificate of fitness was no doubt granted on a point of jurisdiction, but that was not jurisdiction under Section 115, Civil P. C., but jurisdiction under the provisions of the Sea Customs Act, which was specifically held to be a question of general importance.

11. The application for leave to appeal to the Supreme Court in AIR 1953 Raj 42 (FB) (E) was made against a decision of the HighCourt in second appeal on a question of' 'res judicata' which, in view of the particular circumstances in which that question arose, was held to be a question of general public importance in view of divergence of opinion among the various High Courts. There is no such thing here for, as adverted to above, there is no divergence of opinion on the point that where the lower appellate Court has not failed to exercise jurisdiction vested in it by law there is no case for interference in revision by a Judicial Commissioner.

12. The certificate in AIR 1953 All 129 (F)was granted both because the question of law involved was a substantial one and because it was otherwise a fit case for appeal since the decision on the question affected a large section of the public. Neither of these ingredients is satisfied in this case, as shown above.

13. Certificate of fitness was granted in AIR 1953 Assam 101 (G) because the question involved was one relating to the validity and the effect of the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952, which was held to be of wide public importance. And in the order of the High Court from which an appeal was sought to be preferred to the Supreme Court, and which had been passed in an appeal from an order of a Subordinate Judge, the question had been decided.

It is clear therefore that the certificate in that case was granted in order that the aforesaid question of law of wide public importance might be decided by the Supreme Court. Thequestion of public or private importance point- ed out on behalf of the petitioners in the present case, namely, whether the notification of the Chief Commissioner dated 14-1-1949 on foot of which the then Judicial Commissioner passed the order dated 17-5-1949 was 'ultra vires' or illegal will not, however, arise before the Hon'ble the Supreme Court if the certificate in the present case were to be granted, as shown above.

14. In AIR 1953 Ajmer 10 (H) the application under Article 133(1) (c) was no doubt for leave to appeal from a decision of the Judicial Commissioner's Court in revision, but the question of law which was held in that case to be of great private importance to the petitioner was actually decided in the revision. That is not so here.

15. Likewise, the question of public importance affecting the litigants of the State of Himachal Pradesh on account of which certificate of fitness was granted in AIR 1952 Him P. 14 (I), was also to arise before the Hon'ble the Supreme Court because it had been decided in the second appeal from which appeal was sought to be preferred.

16. From what has been stated above it ismanifest that the question of law of allegedgreat public or private importance in respectof which the petitioners seek to go up in appeal to the Hon'ble the Supreme Court (asalso shown by the grounds of appeal filed alongwith the present petition under Order 45, Rule 3,Civil P. C.) will not arise in that Hon'bleCourt if a certificate of fitness were to begranted to the petitioners, but only the question whether the decision of this Court wascorrect that no revision lay because the lowerappellate Court had not failed to exercise jurisdiction vested in it by law, which is a questionwhich does not justify the present case beingcertified as a fit one for appeal to the SupremeCourt. The application is accordingly rejected,but, in view of the technical ground on whichthe application fails, I make no order as tocosts.


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