OUDH NARAYAN SINGH Vs. KAULESHWAR SING

JUDGEMENT

(1.) THIS is an application for leave to appeal to His Majesty in Council against a judgment and decree of a Bench of this Court in a second appeal. The value of the subject-matter of the litigation was admittedly much below Rs. 10,000. As a matter of fact, the value of the subject-matter of the appeal is now stated to be Rs. 2,000 It is, therefore, for the applicant to show very special cause why leave to appeal should be granted. The suit was one for specific performance of a contract for sale. There were certain issues of fact which were concluded by the decision of the lower Appellate Court. In this Court only one point was argued. The suit had been instituted on the last possible day of limitation, that is to say, exactly three years from the date of the contract for sale. It was strongly of intended before this Court that, under these circumstances, a decree for specific performance ought not to be granted, more especially as there was an alternative plea for relief by way of damages. The learned Judges remarked upon this point that the plea had not been taken at all in either of the Courts below. They were of opinion, that, as a matter of principle, they ought not to allow it to be raised in second appeal, and pointed out that to a certain extent the plea raised possible questions of fact as well as of law. If the plea had been taken in the Trial Court, or even in the Court of First Appeal, it was possible that the plaintiff might have led evidence to explain the reason for the delay in the institution of tie suit. The result was that the learned Judges of this Court did not overrule the plea as a point of law, but simply decided that, as a matter of procedure, it was not right or proper to permit the plea to be raised at the stage of second appeal. It seems to us quite impossible to certify that a point of procedure of this sort is a proper one for an appeal to His Majesty in Council. We, therefore, reject this application with costs including fees on the higher scale.