BRINDABAN CHANDRA BASAK Vs. KALIPADA BANDOPADHYAY

JUDGEMENT

(1.) The question before the Full Bench in this reference arises out of an application for a certificate under Article 138 (1) of the Constitution in a proposed appeal from a decision of a division bench of this Court dated April 4, 1963 by which the judgment and decree of the trial Court granting specific performance of a contract for sale of a property in Calcutta was reversed. The decision of the division bench not being one of affirmance entitles the petitioner to a certificate as a matter of course if the valuation test laid down in the said article is salislied. The suit for specific performance was filed on February 13, 1945 on a contract which fixed the price of the premises No. 81, Girish Park North in Calcutta al Rs. 15,000. On March 25, 1940 this property was put up to sale at an auction and was purchased by the respondent No. 8 Dhone Krishna Daw for a sum of Rs. 24,000. The petitioner Brindaban Chandra Basak filed a suit on April 16, 1946 impleading all necessary parlies including the purchaser Dhone Krishna Daw. The suit was decreed following a judgment delivered on March 23, 1959. This decree was however upset in appeal. Being desirous of taking the matter to the Supreme Court the plaintiff filed an application for a certificate under Article 133 of the Constitution. This application was heard by a division bench consisting of the learned Chief Justice and myself. We were inclined to take the view that the proposed appellant to the Supreme Court was entitled to a certificate as a matter of course under Article 133 (1) (a) of the Constitution. But our attention being drawn to a previous judgment of a division bench of this Court in Mugneeram Bangur & Co v. Kalidas Ghosh, (1955) 59 Cal WN 681, where it had been laid down that the "subject matter of the dispute" in a suit for specific performance of a contract for sale of a property was not the property but was the difference between the actual value of the property and the contract price for which the vendor would be bound to convey the property to the purchaser, we took the view that the matter should be referred to a full bench framing the questions of law as below.

(2.) It may be of some interest to trace the history of the statutory provisions with regard to the valuation for the purpose of final appeals from litigation in India. Formerly such appeals lay to the King or Queen in Counsel in England Clause 30 of the Charter establishing the Supreme Court of Judicature al Fort William in Bengal dated 26th March 1774 gave to the litigants the right to pray for leave to appeal. Such appeals were, however, lo be regulated "in such manner and form and under such rules, as are observed in appeals made ..... from. . . plantations or colonies, or from ..... islands of Guernsey, Jersey, Sark and Alderncy." By Clause 33 power was reserved to His Majesty, his heirs and successors in the Privy Council upon the petition of any person aggrieved by a judgment, decree, or other order or rule of the Supreme Court of Judicature at Fort William in Bengal to refuse or admit the said appeal upon such terms as was thought fit to reform, correct or vary such judgment, decree or order as would be thought fit. The clause was subject to a proviso that "no appeal shall be allowed by the said Supreme Court of Judicature at For William in Bengal unless the petition for this purpose shall he preferred within six months from the day of pronouncing the judgment, decree or decretal order complained of and unless the value of the matter in dispute shall exceed the sum of 1000/ pagodas." It may be mentioned here that "Pagoda" according to the Concise Oxford English Dictionary, was a "gold coin once current in South India". The Act of Settlement (Statute 21 Geo. 3, Cap 70) was enacted in the year 1781 for establishing certain regulations for the belter management of the affairs of the East India Companies as well as in India as in Europe, as related to the Administration of Justice in Bengal. Clause 21 thereof provided that "whereas the Governor General and Council, or some committee thereof, or appointed thereby, do determine on appeals and references from the country, or Provincial Courts, in civil causes, be it further enacted, that the said Court shall, and always may, hold all such pleas and appeals in the manner and with such powers as it hitherto hath held the same, and shall be deemed in law a Court of Record, and the judgments therein given shall be final and conclusive, except upon appeal to His Majesty in civil suits only, the value of which shall be five thousand pounds and upwards." By an Act passed in the fourth year of the reign of his Majesty King William the Fourth, i.e., 3 and 4 Will. IV, Chapter 41 it was enacted amongst other things that "It shall he lawful for his Majesty in Council from time to time to make any such rules and orders as may br thought fit, for the regulating the mode, form and time of appeal to be made from the decisions of the Courts of Sudder Dewanny Adawlut, or any other Courts of Judicature in India or elsewhere ..... and in like manner from time to time to make such other regulations for the preventing delays in the making or hearing such appeals, and as lo the expenses attending the said appeals, and as lo the amount or value of property in respect of which any such appeal may be made" By an Order in Council of the 16th day of January, 1836 bis Majesty approved certain rules and orders for regulating the mode, form and time of appeal from the decisions of the said courts of Sudder Dewanny Adawlut which rules and orders were set forth in Schedules A and B to the said order. These Schedules were amended by another Order in Council on 10th day of August 1836. After the demise of his Majesty (William IV) her Majesty (Queen Victoria) was pleased to cancel and rescind all the said Rules, Orders and Regulations of the 10th January, 1830 and 10th August 1836 and to approve of rules, orders and regulations contained in the schedule to the Order in Council of the 10th April 1838. Rule 1 of the schedule to the latest order in Council provided that "from and after December 31, 1838 no appeal to her Majesty, her heirs and successors in Council, shall be allowed by any of her Majesty's Supreme Courts of Judicature at Fort William in Bengal ..... 1or by any of the courts of Sudder Dewanny Adawlul, or by any other Courts of Judicature in the territories under the Government of the East India Company, unless .....the value of the matter in dispute in such appeal shall amount to the sum of ten thousand Company's rupees at least: and that, from and after the said 31st day of December next, the limitation of live thousand pounds sterling heretofore existing in respect of appeals from the Presidency of Fort Williams in Bengal, shall wholly cease and determine." Rule 2 provided that" in all cases in which any of such courts shall admit an appeal lo her Majesty, her heirs and successors in Council it shall specially certify on the proceedings that the value of the matter in dispute in such appeal amounts to the sum of ten thousand Company's rupees or upwards. "By Act 24 and 25 Viet Cap. 104 power was given to her Majesty by Letters Patent under the great seal of the United Kingdom to erect and establish the High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Forl William and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those Presidencies respectively. Under Section 8 of the Act "upon the establishment of such High Court as aforesaid in the Presidency of Fort William in Bengal, the Supreme Court and the Courts Sudder Dewanui Adawlut and Sudder Nizamut Adawlut at Calcutta in the same Presidency shall be abolished: ..... and the records and documents of the several courts so abolished in each Presidency shall become and be records and documents in the High Court established in the same Presidency" "Under Section 10 until the Crown otherwise provided under the powers of the Act "all jurisdiction then exercised by the Supreme Courls of Calcutta, Madras and Bombay respectively over inhabitants of such parts of India as may not be comprised within the local limits of the Letters Patent to be issued under the Act establishing High Courls al Fort William. Madras and Bombay, shall be exercised by such High Courls respectively.

(3.) The first Letters Patent of the High Court of Judicature al Fort William in Bengal bear the date 14th May, 1862. Clause 39 of the said Letters Patent which made provisions for appeals to the Privy Council from the High Court in its Civil Appellate Jurisdiction and in its Original Civil Jurisdiction laid down that "the matter in appeal" was to be of the value of Rs. 10,000/- or was declared by the Court to be a fit one for appeal.