KAIKHUSHROO PIROJSHA GHIARA Vs. C P SYNDICATE LTD

JUDGEMENT

(1.) THIS is an application by the petitioner for leave to appeal to the Federal Court. An insolvency notice was taken out against the appellant for adjudicating him insolvent and the appellant took out a notice of motion to set aside that insolvency notice. Mr. Justice Tendolkar dismissed the notice of motion holding that the insolvency notice was a valid notice. From the judgment of Mr. Justice Tendolkar an appeal was preferred to the bench consisting of myself and Mr. Justice Bhagwati and we affirmed the judgment of Mr. Justice Tendolkar and dismissed the appeal (July 22, 1948 ). The petitioner seeks to go to the Federal Court on the ground that the question involves a substantial question of law.

(2.) NOW, in order to determine this question, one or two very fundamental principles have to be borne in mind. The first is that the Court of Appeal in this Province is the final Court; it is the final Court normally and ordinarily. The other principle is that law favours a finality in litigation and that it is only in the special circumstances laid down in the Code that a litigant is entitled to travel outside the Province and go to the highest Court in the realm, which is now the Federal Court. When the trial Court and the Court of Appeal have concurred in their judgment, it is for the petitioner to satisfy the Court of Appeal, before which he comes for leave to appeal to the Federal Court, that a substantial question of law arises which requires further deliberation and adjudication by the highest Court. Frankly, it is not at all easy to determine what a substantial question of law contemplated by Section 110 of the Civil Procedure Code is. The only guidance that we have had from the Privy Council is that substantial question is not necessarily a question which is of public importance. It must be a substantial question of law as between the parties in the case involved. But here again it must not be forgotten that what is contemplated is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well established principle of law and that principle of law is applied to a given set of facts that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court. 3.NOW, turning to the question involved in this appeal, the first question that had to be considered both by Mr. Justice Tendolkar and the Court of Appeal was as to the construction of the decree on which the insolvency notice was based, and the contention put forward by the appellant was that the payment of Rs. 2,50,000 was not an absolute and unqualified obligation to pay, but was conditional upon certain debentures to be transferred by the judgment-creditor. All the three Judges who considered this question came to the conclusion that the contention of the appellant was untenable and could not be accepted. Mr. Seervai has pressed upon us the fact that all the three Judges have come to the same conclusion, but by different process of reasoning. NOW, if this process of reasoning was inconsistent or self-destructive, then certainly Mr. Seervai would have been right in asking us to allow the matter to be further considered by the Federal Court. But these processes of reasoning supplement each other and the result is that the ultimate conclusion to which all the three Judges arrive is reinforced by the reasoning which each of them has advanced in coming to that conclusion. It is true that the question of the construction of a document is certainly a question of law, but it would be, in our opinion, erroneous to contend that every construction of a document necessarily involves a substantial question of law. This was a decree undoubtedly of a rather complicated character which had various provisions in it. But ultimately what the Courts had to do was to look at the various provisions and to come to the conclusion as to whether the obligation to pay on the part of the judgment-debtor, on which ultimately the insolvency notice was based, was an unqualified obligation or not. We do not think that the construction which the Courts were called upon to place on the decree raises any substantial question of law.

(3.) WE are most anxious that unnecessary litigation should not be encouraged and there should be some finality to litigation, and, therefore, unless a higher Court takes a different view as to what substantial questions of law really mean under Section 110, we would not like parties to feel that every question of law entitles them not to be content with the view of the final Court in the Province, but to go to a higher Court for a further elucidation on that point. The result is that the petition must fail and must be dismissed with costs.