B RAJA RAJESWARA SETHUPATHI ALIAS MUTHU RAMALINGA SETHUPATHI AVERGAL AND RAJA RAMNAD Vs. TIRUNEELAKANTAM SERVAI

JUDGEMENT

(1.) These are two applications for leave to appeal to His Majesty in Council against the decisions of this Court constituted as at present. The actual pecuniary amounts involved in the two appeals are Rs. 400 and Rs. 600 respectively. Under SS.109 and no of the Code of Civil Procedure of 1908 leave to appeal has to be granted where the amount or the value of the subject matter of the suit is Rs. 10,000 or upwards and the amount or value of the subject matter in dispute on appeal to His Majesty in Council is the same sum or upwards or property of like amount or value is involved directly or indirectly, provided where the decree affirms the decision of the Court immediately below some substantial question of law is involved. In this case by reason of the value of the subject matter, the above provisions do not apply. There is, however, further a power under Section 109(c) of the Civil P. C. in this Court to give leave to appeal by certifying that the case is a fit one for appeal to His Majesty in Council. What is contemplated is a class of cases in which there may be involved questions of public importance, or which may be important precedents governing numerous other cases or in which, while the right in dispute is not exactly measurable in money, it is of great public or private importance. See Banarsi Parshad V/s. Kashi Krishna Narain (1900) I.L.R. 23 AH. 227 at 231: L.R. 28 I.A. 11. Hirjibhai V/s. Jamshedji (1913) 15 Bom L, Rule 1021 and In re Khan Chinna (1921)E, W, Notes 353. We are informed that there are many other persons in the Zamindari in question holding under the Zamindar whose rights are governed by documents in the same or similar terms to those construed by the Courts in these cases. The result of these decisions is that the plaintiff Zamindar cannot recover the arrears for the last few years alleged to be due to him in respect of certain Swatantrams. According to our Judgment, there are other means open to the plaintiff to recover such payments or their equivalent for the future. The plaintiff contends that this is a case of great public or private importance because, if our decision is wrong, he would be entitled to recover from many persons for the past amounts aggregating to a large sum. It is obviously unjust that the defendants in these two cases should be put to the expense of fighting this matter in the Privy Council so that, if our judgment is wrong, the plaintiff may recover these small amounts from them, and thereafter in the aggregate a large amount from other persons. In a similar case on application for special leave to appeal made to their Lordships of the Privy Council a condition has been imposed upon the appellant that, whatever be the result of the appeal, he should pay the costs of the other party as between solicitor and client. See Spooner V/s. Juddow (1848-1850) 4 M.I.A. 353 at 360-361, In re Sibnarain Ghose (1853) 5 M.I.A. 322 at 325 and Indian Irrigation Trust Board of Natal V/s. Govindaswami (1909) 13 C.W.N. 1127. I think that this is a proper case for such an order if it is a matter upon which I am entitled to express an opinion. The question has been raised before us whether we have power to impose such a condition. In Clarke V/s. Brajendra Kissore Rai Chowdhuri (1901) L.R. 29 I.A. 40, Jenkins, C.J. and Casperz, J. held that no such power existed in the Indian Courts but was confined to the Privy Council. The result of such a finding is curious. According to the direction of the Privy Council in Moti Chand V/s. Ganga Pershad(1901) L.R. 29 I.A. 40 quoted in the judgment in Clarke V/s. Brajendra Kissore Rai Chowdhuri (1909) 13 C.W.N. 1127 in all cases where leave to appeal is desired although the subject matter is under Rs. 10,000 such applications must in the first instance, be made to the Indian Court as that Court, if it thinks that it is a case fit for appeal to His Majesty in Council can certify to that effect under Section 109(c). What is the duty of the Court if it thinks that the case is a fit one for consideration by His Majsety in Council but that it would not be right to call upon one party whose financial interest in the matter is small to incur the risk of the costs of the appeal? Assuming the decision in Clarke V/s. Brajendra Kishore (1909) 13 C.W.N. 1127 is right and in my judgment in view of the fact that that case went before the Privy_Council and (1853) 5 M.I.A. 322 at 325. (19O1) L.R. 29 I.A. 40. 220 the madras Law journal reports, vol. xliv. special leave to appeal was granted and it was not then suggested that the Calcutta High Court could have itself imposed any condition, it is not possible for this Court to hold otherwise, the only course open to us is to refuse leave and to leave the appellant, if so advised to apply to the Privy Council for special leave.

(2.) During the hearing of these applications we asked the appellant whether he would be prepared to agree to a condition that he should be liable for the costs of the defendants as beween solicitor and client in any event. This by his counsel he definitely refused. It is possible that it would not have been right for us to give leave with such a condition even if agreed to, as if the decision Clarke V/s. Brajendra Kissore (1909) 13 C.W.N. 1127 is correct it might be said that to hold so would be usurping a power reserved to the Privy Council. I venture to express the hope that some day this matter will be discussed in the Privy Council and that a definite pronouncement may be made on the subject. But meanwhile, I think in such cases the only safe course is to refuse leave stating, if it be the case, that the point in issue appears to be one of general importance but not of sufficient importance to the proposed respondent to warrant this Court in putting him to the expense of an appeal to the highest tribunal.

(3.) These applications must accordingly be dismissed with costs. Coutts Trotter, J.