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Kanahaya and ors. Vs. Kundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 12 of 1953
Judge
Reported inAIR1954HP81
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110; ;Constitution of India - Article 133
AppellantKanahaya and ors.
RespondentKundan and ors.
Appellant Advocate Raghunath Sahai, Adv.
Respondent Advocate Tek Chand Chitkara, Adv.
Cases ReferredUdoychand Pannalal v. P. E. Guzdar
Excerpt:
- .....of law. but it is not every substantial question of law that can be treated as a question of public importance to justify the grant of a certificate under section 109(c). on the analysis of the judgment of this court in appeal, it is clear that the decision ultimately depended upon the peculiar facts of this case and not on any general legal considerations.'he also cited--'dwarka das kedar bux v. gajanan jagnnath', air 1946 cal 10 (c), where a division bench of that high court observed:'for granting a certificate under section 109 (c) there must be a question of great public or private importance. it is not enough for the purpose of exercising the discretion under that section that there is only a substantial question either of fact or of law.'reference was also made.....
Judgment:

Ramabhadran, J.C.

1. This is a petition for grant of certificate to appeal to the Supreme Court against the judgment of my learned predecessor in Civil Revision 58 of 1952.

2. Kanhaya (who is the petitioner before me) and three others filed a suit against Kundan and others seeking a perpetual injunction restraining Kundan from officiating as Pujari of Devta Bha-tindlu and to restrain the other defendant from permitting Kundan to work as Pujari and to restrain all of them from interfering with the plaintiffs' rights as Pujari. The Senior Subordinate Judge granted a decree which was affirmed in appeal by the learned District Judge. Then, there was a revision petition to this Court, which was disposed of by my learned predecessor on 29-4-1953. My learned predecessor set aside the decrees of the two Courts below and gave declaration that the plaintiffs and Daulat Ram, defendant, wereentitled to hold the office of Pujari jointly with Kundan.

Kanahya and the remaining plaintiffs now seek a certificate to enable them to appeal to the Supreme Court. This petition was admitted by my learned predecessor. I have heard learned counsel for the parties. Since the value of the subject-matter of the suit was less than Rs. 20,000/-, the case is not covered by Section 109 (a) or (b), Civil P. C. At the conclusion of the arguments, it was suggested by the learned counsel for the petitioners that it is not possible to ascertain the money value of the subject-matter, since the rights of posterity were involved. I am unable, however, to accept this argument. The dispute was over Pujari rights. In the plaint, the value of the suit for purposes of injunction was fixed at Rs. 130/-. The value of the suit for the purpose of the alternate relief, namely, restoration of proprietary rights was given as Rs. 541/-. By no stretch of imagination can it be said that the value of the subject-matter was Rs. 20,000/-, or upwards. Consequently, the case is not covered by Section 109(a) or (b).

3. There remains Section 109 (c). Before a certificate can be granted, this Court must satisfy itself that some substantial question of law of great importance is involved. Learned counsel for the petitioners argued that in this case the right of worship was involved and this was a recurring right and, therefore, it would amount to a substantial question of law. Learned counsel for the respondents, on the other hand, argued that no substantial question of law was involved in this case. He further pointed out that, in coming to his decision, my learned predecessor expressed his opinion that the Courts below had committed a material error of procedure, affecting the ultimate decision of the case by deciding the question of limitation (with respect to the extinguishment of the defendants' right under Section 28, Limitation Act) in disregard of established principles of pleadings, and, therefore, he felt that he was bound to interfere. He also relied upon a Privy Council decision, reported in--'Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras', AIR 1949 PC 156 (A).

Learned counsel also pointed out that on these matters there are well established authorities and, therefore, contended that this case was not fit for appeal under Section 109(c). Reliance was placed, 'inter alia', on--'Balasubramania & Co. v. Radha-krishnamurthy', AIR 1949 Mad 741 (B), where a Division Bench of that High Court pointed out that:

'It was also urged before us that in any event the petitioner will be entitled to a certificate under Clause (c) of Section 109 of the Code, that this is a fit case for appeal to the Federal Court because it involves a point of general importance, public as well as private. It is true, as already mentioned, there is a substantial question of law. But it is not every substantial question of law that can be treated as a question of public importance to justify the grant of a certificate under Section 109(c). On the analysis of the judgment of this Court in appeal, it is clear that the decision ultimately depended upon the peculiar facts of this case and not on any general legal considerations.'

He also cited--'Dwarka Das Kedar Bux v. Gajanan Jagnnath', AIR 1946 Cal 10 (C), where a Division Bench of that High Court observed:

'For granting a certificate under Section 109 (c) there must be a question of great public or private importance. It is not enough for the purpose of exercising the discretion under that section that there is only a substantial question either of fact or of law.'

Reference was also made to--'Governor-General in Council v. Jallan and Sons Ltd.', AIR 1949 EP 370 (D), where a Division Bench of that High Court held:

'A case cannot be certified to be a fit one for appeal to the Federal Court on the mere ground that it raises a substantial question of law.

Where a case involves a substantial question of law, namely, whether an endorsee on a railway receipt is entitled to bring a suit against the railway for damages, but the judgment sought to be appealed against states that there is no serious divergence of opinion in the High Courts, the case does not involve a question of great public importance within the meaning of the rule laid down in--'Radhakrishna Ayyar v. Swaminatha Ayyar', AIR 1921 PC 25 (E) and--'Udoychand Pannalal v. P. E. Guzdar & Co.', AIR 1925 PC 159 (F) and therefore, a certificate of fitness for leave to appeal to the Federal Court will be refused.'

Similarly, in -- 'Ramanathan Chettiar V. Audinatha Ayyangar', AIR 1931 Mad 642 (G), a Division Bench of that High Court held that: 'The existence of a question of law of some difficulty is not a sufficient ground for certifying the case to be 'fit one' for appeal to the Privy Council, unless it is of general and public importance.' The present case relates to a dispute about Pujari rights of a village temple, which cannot be said to be a matter of public and general importance.

4. Under these circumstances, I am not satisfied that a case has been made out for grant of certificate. The petition is, accordingly, rejected with costs assessed at Rs. 30/-.


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