SHEIKH MUHAMMAD HABIBULLAH Vs. BABU UMAR DARAZ ALI

JUDGEMENT

(1.) This is an application for a certificate to be granted Under Section 110 of the Code of Civil Procedure to enable the plaintiff to appeal to His Majesty in Council. The plaintiff brought a suit against the opposite party, alleging that there was a contrast between them for the supply of certain number of sleepers at a certain rate. He made an advance of Rs. 31,704 11.6 to the defendant. He pleaded that the defendant had failed to deliver the requisite number of sleepers; he, therefore, sought to recover Rs. 8,710 out of the advance made and he also sought to recover Rs. 7,789 15.6 as damages for breach of contract. The Court of first instance came to a finding that 14,288 sleepers were supplied by the defendant to the plaintiff. Allowing for the price thereof at the contract rate, it held that Rs. 4,783 were due to the plaintiff but of the sum advanced to the defendant, With regard to damages it assessed them at 2 annas per sleeper and gave the plaintiff a decree for Rs. 1,098.14.0 as damages. At the hearing of the appeal in this Court this Court affirmed the decision of the Court below so far as the number of sleepers delivered was concerned and upheld that decree for the sum of Rs. 4,783. In respect to the amount of damages, however, it held that there was no sufficient evidence to enable the Court to assess the damages and it disallowed the claim for damages in toto. It will be noted that the plaintiff only claimed the sum of Rs. 7,88 l5-6 in his plaint on account of damages. Section 110 of the Code of Civil Procedure runs 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 Rs. 10,000 or upwards and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same or upwards.

(2.) In the present case it is quite evident that in so far as the sum of Rs. 4,7 3 is concerned, this Court upheld the decree of the Court below and that sum cannot now be questioned on appeal. The subject-matter in dispute on appeal to His Majesty in Council cannot, therefore, be more than the sum of Rs. 7,789.15.0. The proposed appeal, therefore, does not satisfy the conditions laid down by Section 110 and we are, therefore, unable to certify that it does.

(3.) The application is, therefore, rejected with costs to the opposite party.