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It is no doubt true that the value has to be considered from the point of view of the appellant. Ratio |
The property may also include money. Ratio |
But it is essential under article 133(1)(b) that the claim must be in respect of property or money which property or money must be different from the subject matter of the litigation. Ratio |
Therefore, the decision of the Judicial Committee is no, (If much assistance to the appellant. Ratio |
Mr. Sorabji, then referred us to the decision of the Full Bench of Andhra Pradesh High Court in Smt. ARG |
Rajah Kishore vs Bhaskara Gouta Chorani and others(2) Dealing with cls. ARG |
(a) and (b) of article 133 (1) the High Court says "In our opinion, clause (b) of article 1 33(1) is intended to meet a situation es sentially different from that arising under clause (a). Ratio |
Under clause (a) we have to look at the value of the reliefs obtainable in the suit and in the appeal. PRE |
Under clause (b) we have to look at the effect of the judgment appealed against from the point of view of the appellant. PRE |
A thing, is said to be involved in another when it is a necessary resultant of that other. Ratio |
(Stroud 's Judicial Dictionary). Ratio |
The matters adjudicated upon in the judgment appealed from may have far reaching consequences detrimental to the property of the appellant, although they were not comprised in the cause of action (1) [1954] Appeal Cases 80. Ratio |
(2) A. I. R. 1960 Al.P. 286.943 of the plaintiff and cannot be regarded as being "still in dispute" on appeal. Ratio |
This decision in fact emphasises quite rightly that to attract cl.(b) of article 133(1) one has to look to the effect of the judgment sought to be appealed against on other properties which are not the subject matter of dispute and are not comprised as such in the litigation. Ratio |
Similarly, the decision of the Madras High Court in Commissioner of Income tax Madras vs section L. Mathias(1) is also of no assistance to the appellant. PRE |
The facts of the said decision show that the High Court was of the view that there is a difference of opinion between the High Courts on the effect of the Proviso 2 to section 4(2) of the Income tax Act, 1922. PRE |
The High Court was of the view that "there can be no doubt that +the question involved is a substantial question of law", and on this basis granted a certificate of fitness. PRE |
It is clear that the High Court granted the certificate on the ground that there was a substantial question of law involved in the appeal and as such it was a fit one for appeal to the Judicial Committee. Ratio |
Mr. Sorabji then referred us to the decision of the Madras High Court in G. Appuswamy Chettiar and another, vs R. Sarangapani Chettiar and others ( 2) In that case the suit was for a declaratory relief regarding the invalidity of the adoption of a particular person. 'The certificate was asked for on the ground that the... |
It was accepted by the High Court that if leave to appeal was not granted to the petitioners therein, they will lose an estate worth more than Rs. 68,000/ though the estate itself was not directly the, subject matter of dispute either in the trial court or the High Court. PRE |
The High Court further held that in a suit for a declaration of adoption a claim made by the reversioners to the property cannot be considered to be too remote. PRE |
It is on this ground that the certificate was granted. PRE |
It is clear from the judgment of there High Court that the final decision of the High Court in that case did affect the right 's of the petitioners therein to properties of the value of more than Rs. 68,000/ . Ratio |
It is on that basis that the certificate was granted under article 133(1)(b). Ratio |
In our opinion, the decisions relied on by Mr. Sorabji do not support his contention that the certificate granted by the High (1) A.I.R. 1938 Mad. 352 (2) 944 Court, in the case before us, under article 133(1)(b) is proper and valid. Ratio |
In fact the said decisions clearly bring out the distinction between cls. Ratio |
(a) and (b) of article 133 (1) and they lay down that only when the judgment or final order affects property which is not the subject matter of the, litigation that article 133(1)(b) apply. Ratio |
Those decisions are in conformity with the principles laid down by this Court in Chhitarmat vs M/s Shah Pannalal Chandulal(1). Ratio |
It is clear that interest, unless granted 'by the decree or the trial court, cannot be notionally added to inflate the value of the claim in the appeal so as to make it appear that on the date of the judgment of the High Court the value is not less than Rs. 20,000/ . Ratio |
On the same principle, we have already pointed out that mesne profits, which have not been decreed by the trial court, cannot be added to the original claim made in the suit, so as to enable a party to. Ratio |
plead that the value in the proposed appeal on the date of the judgment of the High Court is more than Rs.20,000/ . Ratio |
We may refer to the decision of the Judicial Committee in Moti Chand and others vs Ganga Parshad Singh and an other (2) where interest awarded under the decree of the trial court was taken into account for the purpose of considering the value in the appeal before the High Court. Ratio |
The suit was for recovery of a certain amount together with interest. Ratio |
By the time the High Court 's decree was made, the amount at issue had reached to Rs. 10636/ with further contingent increment. Ratio |
The High Court declined to grant the certificate on the round that the amount or value of the subject matter of the suit in the court of first instance was not Rs. 10,000/ as required by the ,aid section though the amount or value of the matter in dispute on appeal to Her Majesty in Council was above Rs. 10,000/. Ratio |
No doubt, this decision is not on the question 'regarding matters covered by cl.(1) of article 13 '(1). Ratio |
But we, are only referring to this decision to show that interest can be taken into account for the purpose of considering the value in an appeal, provided the decree itself has awarded interest. Ratio |
We may also refer to the decision of the Judicial Committee in Surapati Roy & others vs Ram Narayan and Mukherji & others(3). Ratio |
In that decision the question arose under section 110 of the Code of Civil Procedure 1908 regarding the validity of the certificate granted by the High Court. Ratio |
Though the rent claimed in the suits was less than Rs. 10,000/ the High Court had granted a certificate of fitness on the ground that the value of the subject matter (1) [1965] 2 S.C.R.751 (2) 29 Indian Appeals 40. Ratio |
(3) 50 Indian Appeals 155. Ratio |
945 was over Rs. 10,000/ . Ratio |
The objection taken before the Judicial Committee regarding the validity of the certificate, on the ground that the subject matter was below the appealable value was rejected as follows : ". . Ratio |
The certificate in the circumstances is quite in order. Ratio |
" It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid. Ratio |
Both the above decisions of the Judicial Committee have no application to the facts of the present case on hand. 'The principle that a claim made by one party and resisted by another is ordinarily the subject matter of the dispute in the trial court and continues to be the subject matter in the Appellate Courts. Ratio |
In the case before us the claims for over time wages and weekly off wages before the Authorities were for a specified period. Ratio |
The claims for the identical periods were the subject matter in the appeals before the Court of Small Causes. Ratio |
The High Court had also to consider the correctness of the decision of 'he Court of Small Causes regarding the claims made by the workmen for the particular periods. Ratio |
The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgement of the High Court. Ratio |
If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, clause (a) of Article 133(1 ) will apply. PRE |
That clause has no,, been invoked in this case by the High Court. Ratio |
It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 / in addition to or other than the (... |
In the first place, this contention proceeds on the assumption that the judgment of the High Court directs talk appeal Lo pay in future amounts not less than Rs. 20,000/ . Ratio |
This assumption is basically erroneous, as there is no such direction given by the High Court. Ratio |
The payment of wages as for over time or weekly off days will depend upon several circumstances.if over time work is not taken, then no payment need be made. Ratio |
If over time work is taken for a lesser time, then the amount to be paid will also be less. Ratio |
In our opinion, this is not a case where the decision of the High Court, apart from clearing with the subject matter in dispute before it, has tthe effect of affecting the rights of the appellant regarding other properties, including money. Ratio |
We may give an instance where a final judgment may have an impact or affect properties, other than the subject matter in dispute. Ratio |
In a suit for mandatory injunction directing a defendant to vacate a land, the, subject matter of the suit may be only of the value of Rs. 1500/ but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000/ . Ratio |
so as to give vacant possession of the land in accordance with the decision of the High Court. Ratio |
In such a case, though the value of the subject matter in dispute before the High Court may be only Rs. 1500/ , the judgment, can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of no ', less than Rs. 20,000/ . Ratio |
Such a case may attract article 133(1)(b). Ratio |
The position before us is entirely different. Ratio |
The judgment of the High Court has only adjudicated upon the subject neither of the specified claim of the workmen which was, as mentioned earlier, for a particular period. Ratio |
That judgment does not involve directly or indirectly apart from the subject matter of the writ petition, any claim or using respecting property or money of the value of Rs. 20,000/ and more. Ratio |
In this view, we are of the opinion that the certificate granted by the High Court under article 133(1)(b) is not valid and proper. Ratio |
In the view that we take that the certificate ranted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same. Ratio |
As the certificate issued by ,he High Court under article 133 (1) (b) is not proper and valid, the only course oven to us is to revoke the certificate and set aside the order of the High Court granting the same. Ratio |
The result is, the appeal has become unsustainable, as it has been, brought to this Court on a certificate which, as, held by us, has not been properly and validly granted. RPC |
947 in the result, C.M.P. No. 1300 of 1972 is allowed, and the appeal is held to be not maintainable and as such dismissed. RPC |
In C.M.P. N. ). RPC |
1300 of 1972 the respondents will be entitled to costs. RPC |
, In the appeal there will be no order as to costs. RPC |
K.B.N. Appeal dismissed. RPC |
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2152 of 1968. FAC |
Appeal by special leave from the _judgment and decree dated July 19, 1968 of the Madras High Court in Second Appeal No. 1173 of 1964. FAC |
M. C. Chagla, R. Gapalakrishnan and T. L. Garg, for the appellant. FAC |
M. K. Ramamurthi, Ramamurthy and Vineet Kumar, for res pondents Nos. 1 and 6 to 9. FAC |
The Judgment of A. N. RAY and M. H. BEG was delivered by BEG J. SIKRI C.J. gave a separate Opinion. FAC |
Beg, J. Jayaram Mudaliar, the Appellant before us by Special Leave, purchased some lease hold land for Rs. 10,500/ from Munisami Mudaliar and others under a sale deed of 7 7 1958 (Exhibit B 7) and some other lands shown in a sales certificate dated 15 7 1960, (Exhibit B 51) sold to him for Rs. 6,550/ at a public auctio... |
Both Jayaram and Munisami, mentioned above, were impleaded as co defendants in a 142 Partition suit, in Vellore, Madras,, now before us in appeal, commenced by a pauper application dated 23 6 1958 filed by the plaintiff respondent Ayyaswami Mudaliar so that the suit must be deemed to have been, filed on that date. FAC |
The plaintiff respondent before us had challenged, by an amendment of his plaint on 18 9 1961, the validity of the sales of land mentioned above, consisting of items given in schedule 'B ' to the plaint, on the ground, inter alia, that these sales, of joint property in suit, were struck by the doctrine of lis pendens e... |
As this is the sole question, on merits, raised by the appellant before us for consideration, we will only mention those facts which are relevant for its decision. Ratio |
Before, however, dealing with the above mentioned question, a preliminary objection to the hearing of this appeal may be disposed of. Ratio |
The Trial Court and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above, the appellant purchaser had filed a second appeal in the High Court of Madras, which was substantially dismissed by a learned Judge of that Court, on 19 7 1968, after a modification of the decree... |
Leave to file a Letters Patent appeal was not asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows "28.When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, any application for a certificate that the case is a fit ... |
" But, the appellant, after obtaining certified copies of the judgment and decree of the High Court, sent a letter to the Registry that the case be listed again for obtaining, a certificate of fitness to file a Letters ' Patent appeal. FAC |
The case was, therefore, listed before the learned Judge and an oral application which was then made for grant of a certificate, was rejected on 6 9 1968 on the ground that it had not been made at the proper time. FAC |
It was contended, on behalf of the respondent, that, in the circumstances stated above, the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did not ask for leave to file a Letters ' Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court (th... |
The following observations of this Court in Penu Balakrishna Iyer & Ors.vs Sri Ariva M. Ramaswami lyer & Ors.(1) were cited to contend that, the appeal before us should be rejected in limine : (1) ; @ 52 53 143 .lm15 "Normally, an application for special leave against a second appellate decision would not be granted un... |
In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution .as is evident from the, fact that article 133(3) expressly provides that normally an appeal will not lie to this Court from the judgment, decree, or final order of one Judge of the High Court. PRE |
It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. PRE |
But even in such cases, it is necessary that the remedy by way of a Letters ' Patent Appeal must resorted to before a party comes to this Court". PRE |
In reply to the preliminary objection, Mr. Chagla, appearing for appellant, has assailed the validity of the above mentioned Rule 28 of Order IV itself. ARG |
It is submitted that the rule conflicts with the provisions of clause 15 of the Letters ' Patent of the Madras High Court requiring only that the Judge who passed the Judgment should declare that the case is fit one for appeal as a condition for appealing. ARG |
It was urged that the period of limitation for filing an appeal should not, in effect, be cut down by a rule such as the one found in Rule 28, Order IV of the Rules of Madras High Court. ARG |
It was urged that, before article 117 of the of 1963 introduced a period of thirty days from a decree or order for filing a Letters Patent appeal, the period of limitation for such appeals fell under the residuary article 181 of the old . ARG |
As applications for certification fen outside the provisions of the Civil Procedure Code and there was no specific provision for them in the the High Court could frame its own rule prescribing the mode and time for making such applications. Ratio |
Rule 28 of Order IV of the Madras High Court does not purport to affect the power to give the declaration contemplated by clause 15 of the Letters ' Patent,. Ratio |
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