KARAKKAT KUMARAN RAMAN ALIAS KAVALAPPARA KOTTARATHI KUNHIKUTTAN UNNI ALIAS MOOPPIL NAIR Vs. SATHYANATHAN UNNI NAIR

JUDGEMENT

(1.) The appellant filed a petition before the Subordinate Judge, Ottapalam under S.113 of the Code of Civil Procedure requesting him to slate a case and refer to the High Court the question of law whether S.7(3) of the Hindu Succession Act, 1956 was ultra vires the Constitution. The Subordinate Judge dismissed the petition; and thereafter, the appellant filed the petition which has given rise to this appeal before this Court under Art.228 of the Constitution to withdraw the original suit pending before the Subordinate Judge and determine the question of law stated above regarding the interpretation of the Constitution. Madhavan Nair J. dismissed the petition and hence the appeal.

(2.) The counsel of the contesting respondents has taken a preliminary objection [hat an appeal from such an order of a Single Judge to a Division Bench is not competent under S.5 of the Kerala High Court Act. The contention is that a petition under Art.228 of the Constitution to withdraw a suit or appeal pending before a subordinate court is not an original proceeding coming within S.5 of the High Court Act. The counsel of the appellant has brought to our notice two decisions of the Madras High Court. The first is Alia Subbareddi v. Lankireddi Narayanaswamireddi ( AIR 1949 Mad. 283 ) by Satyanarayana Rao J., who has held that an application under S.24 of the Code of Civil Procedure is an original proceeding within the meaning of S.141 of the Code and consequently the procedure provided under the Code in regard to suits becomes applicable and a receiver can be appointed ex parte in such a proceeding. The second decision is again of the Madras High Court, the Division Bench ruling in Srirangam Municipality v. R. V. Palaniswami Pillai ( AIR 1951 Mad. 807 ) by Rajamannar C. J. and Viswanatha Sastri J. Division Bench was considering against S.24 of the Code of Civil Procedure; and the Division Bench has opined that a proceeding under S.24 of the Code is in the nature of an original proceeding though it is not necessary to commence such proceeding on the Original Side of the High Court. The Division Bench has pointed out that S.24 of the Code applies not only to the Chartered High Court but to the other High Courts and the District Courts, and applies to the withdrawals of not only original suits but of appeals as well, so that the petition need not be on the Original Side of the High Court. There is a third decision of this Court by a Division Bench, to which one of us was a party, wherein the question decided was whether a petition under S.7 of Kerala Act 31 of 1958 filed in an appeal before the High Court was in the nature of an original proceeding so as to attract S.5 of the High Court Act for the p purpose of appeal before a Division Bench. The Division Bench has held that such a petition is an original proceeding and is consequently amenable to appeal under S.5 of the Act: vide Vasudaevan Namboodiri v. Narayanan Nambudiri ( ILR 1969 (2) Ker. 387 ). In the light of the reasoning contained in these three rulings, we are of opinion that a petition under Art.228 of the Constitution for withdrawing a proceeding from a lower court to the file of the High Court is an original proceeding falling within S.5 of the High Court Act for purposes of appeal to a Division Bench. The preliminary objection is overruled.

(3.) Next we come to the point whether there is a substantial question of law as to the interpretation of the Constitution as contemplated by Art.228 of the Constitution so as to have the suit withdrawn to this Court for decision of the said question. The language of Art.228 is that, if the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, the High Court shall withdraw the case, etc. What is a substantial question of law has been considered by the Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. ( AIR 1962 SC 1314 ). That was a case under Art.133 of the Constitution relating to appeals to the Supreme Court, where also the expression 'substantial question of law' occurs. The test laid down by the Supreme Court in that case for determining whether a question raised is a substantial question of law is whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views: if the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles, then the question would not be a substantial question of law. The result is that, if the question is an open question in the sense that another view is possible even if there is a decision of the Privy Council, the Supreme Court or the Federal Court on the question, then it is a substantial question of law for the purpose of appeal under Art.133 of the Supreme Court.