KISHAN CHAND Vs. LACHHMI CHAND

JUDGEMENT

(1.) This is an application for leave to appeal to their Lordships of the Privy Council from an order passed by a Bench of this Court. A suit was brought by the plaintiffs for a declaration of title as to property in Schedule B attached to the plaint on the basis of a private partition and for other reliefs against the defendant 1. At his own instance defendant 2, the son of defendant 1, was made a party. There was written compromise filed and signed by the plaintiffs and defendant 1 which it was alleged, at one time had been provisionally agreed to by the pleader for the defendant 2. This compromise, however, was not verified by the pleader who was absent on the date fixed. The first court decreed the claim in terms of the compromise against the defendant 1 and decreed it ex parte against defendant No. 2 in terms of the compromise.

(2.) An application was later on filed on behalf of the defendant 2 for the setting aside of the ex parte decree passed against him. The Court after considering the case came to the conclusion that the decree should not be set aside and it rejected the application. This application was numbered as Miscellaneous Application No. 200 in the original suit. A first appeal from order was preferred to this High Court from the order rejecting the application and a Bench of this Court allowed the appeal and set aside the ex parte decree as against both the defendants with the result that the original suit was restored to its original number to be tried de novo. The defendants wish to appeal to their Lordships of the Privy Council from the order passed by the High Court. Preliminary objections are taken by the learned advocate for the respondents that the valuation is less than Rs. 10,000 and that there is no right of appeal because the order of thus Court was not a final order within the meaning of Section 109, Civil P.C.

(3.) As regards the first objection, no doubt the valuation of the suit as put down in the plaint was Rs. 5100 and the court fee paid was on the basis of the Government revenue. But it is conceded on behalf of the respondent that value of the property in Schedule B was more than Rs. 10,000. It seems to us that the suit, being one relating to a declaration of title to the property in Schedule B and for other reliefs in respect of it, was one involving directly or indirectly a claim or question to or respecting property of the amount or value exceeding Rs. 10,000. Section 110 Civil P.C. does not speak of the valuation of the suit as put in the plaint but of the value of the subject-matter in dispute or of the value of the property affected by it. We therefore overrule this objection. The second objection requires some consideration. Their Lordships of the Privy Council in the leading case of Saiyid Mazhar Hossein V/s. Mt. Bodha Bibi 1895 17 All 112 laid down that an order is a final order when it comprises the decision of the High Court upon the cardinal issue in a suit, that issue being one which goes to the foundation of the suit, and one which can never, while this decision stands, be disputed again. In that case their Lordships actually entertained the appeal from an order remanding the case on a finding reversing the decree of the original Court that the gift in dispute was valid. The only two cases which have been brought to our notice and in which their Lordships of the Privy Council held that no appeal could lie were Radha Kishan V/s. Collector of jaunpur 1901 23 All 220 and Ramchand Manjimal v. Goverdhandas Vishinda Ratanchand A.I.R. 1920 P.C. 86.