SASTRI YAGNAPURUSHDASJI Vs. MULDAS BHURADAS VAISHYA

JUDGEMENT

(1.) THIS is an application by original plaintiffs Nos. 1, 2, 4 and 5 for leave to appeal to the Supreme Court against the decision of this Court in State of Bombay v. Shastri Yagna Purushadasji (1958) 61 Bom. L.R. 700, dismissing the petitioner's suit. The suit was filed for a declaration inter alia that the Swaminarayan Temple of Shree Nar Narayan Dev at Ahmedabad and all the temples subordinate thereto were not temples within the meaning of the Bombay Harijan Temple Entry Act, 1947 (Bom. Act XXXV of 1947) as amended by Bombay Act LXXVII of 1948, and to restrain defendant No. 1 and other non -Satsangi Harijans from entering the said temples. The trial Court had granted the said declaration and injunction, and against that decision the State of Bombay as well as original defendant No. 1 had filed First Appeal No. 107 of 1952. When the appeal was heard by this Court on March 8, 1957, the appeal, so far as it was filed by the State of Bombay, came to be dismissed, and by a further order dated March 25, 1957, there was a remand to the trial Court to record a finding whether the Swaminarayan Temple at Ahmedabad and the temples subordinate thereto were Hindu religious institutions within the meaning of Article 25(2)(b) of the Constitution. The trial Court returned an affirmative finding on this issue and the appeal was then argued on the merits. Two points were raised on behalf of the appellants in the appeal: (1) that the Swaminarayan Sampra -day was a religion different from the Hindu religion, and (2) even assuming that the followers of the Sampraday were Hindus by religion and the suit temples were Hindu religious institutions, within the meaning of the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which repealed the Bombay Harijan Temple Entry Act, 1947, that Act would be ultra vires Article 25(1) of the Constitution of India and, therefore, plaintiffs would be entitled to the reliefs claimed by them. These contentions were negatived and the appeal was allowed) the decree of the trial Court was set aside and the plaintiffs' suit was dismissed with costs throughout. That is why the petitioners have filed this application for leave to appeal to the Supreme Court.

(2.) ON behalf of the petitioners it is prayed that the Court should grant them leave both under Article 133(1)(b) as well as (c) -of the Constitution of India, in that the judgment and decree of this Court involve directly or indirectly one claim or question respecting property of the value of twenty thousand rupees or upwards and also that the case is a fit one for appeal to the Supreme Court.

(3.) THEN it was further contended that the petitioners would not be entitled to get leave under Article 133(1)(b) of the Constitution because the case does not satisfy the requirements of Section 110 of the Civil Procedure Code. It is pointed out that the plaintiffs had originally valued their claim in the plaint at Rs. 5,250 and in the First Appeal also the said valuation was retained both for the purposes of Court -fees as well as advocate's fees. It is not disputed even by the appellants, as is clear from sub -para. (18) of para. 18 of the petition, that the amount or value of the subject -matter of the dispute in the Court of first instance and in the First Appeal was less than Rs. 20,000. Mr. A.D. Desai argues that if that be so, the requirements of para. 2 of Section 110 of the Civil Procedure Code will not be satisfied. Now, Section 110 of the Civil Procedure Code reads as follows: - In each of the cases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject -matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject -matter in dispute on appeal to the Supreme Court must be the same sum or upwards. or the judgment, decree or final order must involve directly or indirectly, some claim or question to or respecting property of like amount or value, and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law. In the present case, this Court has allowed the appeal and set aside the decree of the trial Court and, therefore, para. 3 of Section 110 Would not apply. But Mr. A.D. Desai contends that para. 2 of Section 110 cannot be read independently of the first part of para. 1 of Section 110, and Mr. Desai's contention is that even in the case of para. 2 of Section 110 the condition that the amount or value of the subject -matter in dispute in the Court of first instance must be Rs. 20,000 or upwards must be satisfied. In support of his argument, he has referred us to the case of Govindbhai v. Dahyabhai (1936) 39 Bom. L.R. 332 where Mr. Justice Broomfield expressed his agreement with the view of the Madras High Court in Subramania Ayyar v. Sellammal I.L.R. (1915) Mad. 843 where it was held that the second para. of Section 110 applied only to cases which involved some claim or question to or respecting property, additional to or other than the actual subject -matter in dispute in appeal and to be taken into account therewith in making up the appealable value. Now, it has to be observed, in the first instance, that in the Bombay case the plaintiffs had claimed a declaration respecting certain property and it was observed by Mr. Justice Broomfield that the declaration could only be valued on a notional basis and the plaintiff was not estopped nor barred from saying that the value of the subject -matter of the suit and appeal was Es. 10,000 or over within the meaning of Section 110 as it stood then, and therefore the plaintiff was held entitled to a certificate to appeal to the Privy Council under Section 110, para. 1, of the Civil Procedure Code. Secondly, since the enactment of the Constitution of India, both Section 109 and Section 110 of the Civil Procedure Code have been amended and the first para, of Section 109 states that an appeal shall lie to the Supreme Court under Clauses (a), (b) and (c) of that section, subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India. It is clear, therefore, that Section 110 which refers to Clauses (a) and (b) of Section 109 must be read subject to the provisions in Chapter IV of Part V of the Constitution. Now, Article 133(1) of the Constitution which is in Chapter IV of Part V reads as follows: (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies - (a) that the amount or value of the subject -matter of the dispute in the Court of first, instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub -clause (c), if the High Court further certifies that the appeal involves some substantial question of law.