RAM PRASAD Vs. TRILOK NATH MINOR

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from an order passed by a Bench of this Court rejecting an application for a review of judgment. It is admitted by Mr. Kunzru, who appears in support of the present application, that if it can be allowed at all it must be under Clause (c), Section 109, Civil P.C. and not Clause (a) or (b) of that section, that is to say, we should have to certify that it is a fit case for appeal to his Majesty in Council. The circumstances in which the application for review was made are these. The applicant was the defendant in a mortgage suit, and the issue on which he had failed both in the trial Court and on appeal in the High Court was in regard to a payment of Rs. 9,000 said to have been made to the plaintiff, and said by the defendant to have been entered in the plaintiff's account books relating to money lending. During the proceedings the defendant summoned the account books of the plaintiff but the plaintiff died during the progress of the suit, and his son, who was brought on to the record as his representative, denied the existence of" the account books. Subsequently the defendant discovered that some account books had been filed by the original plaintiff in some other litigation and had been in the possession of a receiver, but that they had been subsequently returned by the Court to the plaintiff's son. His contention in: making his application for review was, not that those account books contained any definite entry which would show the payment of Rs. 9,000, but that the mere fact that the account books existed showed that the plaintiff or the plaintiff's son had been intentionally keeping them back, and this would have enabled the defendant to ask the-Court to make a presumption that there was evidence in the account books which would have been against the plaintiff's interest.

(2.) It will be seen therefore that the defendant was unable to plead before this Court that he had discovered new and important matter, and this was one of the grounds on which the application for review was dismissed. We have however now to consider whether the issue raised is one that we could certify as being a fit one for appeal to His Majesty in Council. It must be conceded that such an issue would have to be one of general importance. The criterion has been laid down by Lord Hobhouse in the case of Banarsi Prasad V/s. Kashi Krishna Narain (1901) 23 All. 227, where he remarked that Clause (c), Section 109, Civil P.C: is clearly intended to meet special cases; such for example, as those in which the point in disputes is not measurable by money, though it may be of great public or private importance. To certify that a case is of that kind, though it is left entirely in the discretion of the Court, is a doubtful process which could not be performed, without special exercise of that discretion, evinced by the fitting certificate.

(3.) In a later case Radhakrishna Ayyar V/s. Swaminatha Ayyar 1921 P.C. 25. Their Lordships of the Privy Council, remarked that the certificates given, under Clause (c), Section 109 are of great, consequence, that they seriously affect, the rights of litigant parties, and that they ought to be given in such a form that it is impossible to mistake their meaning upon their face, and in that case special leave to appeal was given, on the ground that an important question of law affecting the whole community was raised, which had not hitherto been the subject of judicial interpretation. It was further remarked: There are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money. Sub-section (c), Section 109, Civil P.C., contemplates that such ii state of thing exists, and Rule 3, Order 45 regulates the procedure.