ANNAPURNA COTTON MILLS LTD Vs. SHYAMALENDU BHADURI

JUDGEMENT

(1.) This is an application by the plaintiff, whose suit has been ultimately dismissed, for a certificate under Sub-clause (a) of Article 133 (1) of the Constitution of India. Certain other prayers were made in the application, but we are no longer concerned with them. Admittedly, the petitioner stated in the plaint the value of the land in Suit to be a sum of Rs. 15,000/- only. It stated, however, now in its present application that that valuation was not the correct market value of the land on the date of the suit, the 28-2-1947, and that the market value of the said land on that date would not be less than a sum of Rs. 24,000/- and on the date of this Court's decree, namely 9-1-1956, the value of the land would not be less than Rs. 50,000/-. On behalf of the defendant opposite party it was contended that the plaintiff was precluded from showing to this Court that the value of the land, on the date the suit was brought, was more than Rs. 15,000/- as mentioned in its plaint. By an order dated 6-7-1956, this Court without finally deciding the question whether the valuation put upon the plaint could be revised directed the Third Additional Subordinate Judge, Alipore, to make an enquiry and report to this Court the true value of the land as on 28-2-1947, the date of the institution of the suit and, secondly, on 16-4-1956, the date on which the application for leave to appeal to the Supreme Court was filed. The Subordinate Judge has held the enquiry and has submitted his report together with the evidence recorded by him. In his report he has stated that in February, 1947, the value of the B Schedule land -- the land of which he was asked to enquire and report as regards the value -- was about Rs. 50,000/- and that in April, 1956, the value of the same land would be about Rs. 73,000/-.

(2.) Before we can go into the question whether on the basis of the valuation made by the Subordinate Judge, it will be proper for us to issue a certificate in terms of Sub-clause (a) of Article 133 (1), it is necessary, first, to decide the question, already referred to, raised by the opposite party, namely, whether the petitioner having in its plaint made a statement that the value of the land was Rs. 15,000/-, can be allowed to show to this Court that the valuation was not less than Rs. 20,000/- on that date. The question whether a party who has made an earlier statement in his plaint about the value of the land or has adopted the statement made by the other side as regards the value of the land and on that basis brought an appeal to a particular forum can be allowed later on, for the purpose of an appeal to a higher Court to go back on his previous statement, has come up before the Courts on many occasions. One of the earliest cases in which the question was raised was the case of Mutusawmy Jagavera Yettapa Naiker v. Vencataswara Yettia, 10 Moo Ind App 313 (PC) (A). In that case their Lordships of the Privy Council granted leave to appeal, even though the petitioner had not made an earlier application for leave to appeal, to the High Court. In that connection their Lordships after pointing out that on the basis of the previous decision of the Board which was binding on them, they would be compelled to say that as there had been no application for leave to appeal to the High Court the petitioner's application to the Board ought not to be entertained and no leave given to appeal, observed:

(3.) In Kristo Indra Saha v. Huromonee Dassee, 1 Ind App 84 (PC) (B), the High Court had rejected the application for leave to appeal on the ground of value. Application was thereupon made to the privy Council and leave to appeal was granted. Their Lordships, after pointing out that the defendant had obtained the benefit of an appeal to the High Court upon the facts by adopting the plaintiffs' valuation, remarked, "she cannot afterwards come here and object to that valuation." Their Lordships added: "The Judge ought to have given more weight to the acts of the parties and not to have rejected the application on the ground of value." In Basanta Kumar Roy v. Secretary of State, 14 Cal WN 872 (C), the facts were that the value of the land as laid in the plaint was Rs. 6,156-9-0. The Court of first instance passed a decree against the defendants; the respondents in the High Court appealed, treating the value of the land for the purposes of the appeal as Rs. 6,156-9-0. It was held relying on the decision of Kristo Indra Sana's case (B), that this valuation could not be questioned by the defendant on the principle that a party cannot both approbate and reprobate.