AYYA RAGHUNATHA THATHACHARIAR Vs. THIRUMALAI ECHAMBADI THIRUVENGADACHARIAR

JUDGEMENT

(1.) This is an application for the grant of a certificate that the case is a fit one for appeal to his Majesty in Council from the judgment of this Court in Appeal No. 175 of 1910 See 28 Ind. Cas. 604--Ed.. The application as amended is filed under Section 109, Clause (c), of the Civil Procedure Code read with Order XLV, Rules 2, 3 and 8. I think the more accurate way of describing the application is that it is filed under Order XLV, Rule 2 alone. The ground stated in the application is that though the case does not fulfil the requirements of Section 110, it is otherwise a fit one for appeal to His Majesty in Council and hence comes within the last sentence of Order XLV, Rule 3, Clause 1, the power to appeal being given by Section 109, Clause (c). As was pointed out by my learned brother in the course of the arguments, there is no express section or Order in the Civil Procedure Code directing the Court to issue a certificate when it finds that an applicant under Order XLV, Rule 2, has established grounds entitling the applicant to a certificate. Order XLV, Rule 7 seems, however, to imply that the Court should grant a certificate where proper grounds are shown for such grant and where the opposite party to whom notice goes under Order XLV, Rule 3, Clause 2, has failed to show cause against the grant of the certificate.

(2.) In Motichand v. Ganga Prasad Singh 24 A. 174 : 29 I.A. 40 : 6 C.W.N. 362 : 4 Bom. L.R. 156 their Lordships of the Privy Council state at page 177: "But then Mr. Mayne suggests that their Lordships ought to give special leave to appeal. Now, the practice of this Board in advising His Majesty to exercise His prerogative and to give special leave to appeal, is well known, and this Board does not advise His Majesty to exercise His prerogative in that manner unless there is some substantial question of law of general interest involved." Then at page 178 their Lordships say: "Their Lordships think it is a good rule to lay down that where a party comes for special leave to appeal, the case being under appealable value, and, therefore, not an appeal as of right, he should in the first instance apply to the High Court for leave to appeal, on the ground that it is otherwise a fit one for appeal to His Majesty in Council." It seems to me that when the High Court has to consider the question whether it is otherwise a fit one for appeal to His Majesty in Council," it might legitimately look to the criterion of fitness laid down by the practice followed by their Lordships in advising His Majesty to give special leave to appeal, the Legislature in the Civil Procedure Code having itself given no indications as to the criterion of fitness to be adopted by the High Court under Order, XLV, Rule 3, Clause 1. I do not, of course, mean that our powers are so wide as those exercised by the Board in granting special leave but that where the Privy Council states a guiding principle, we can safely adopt that.

(3.) Jenkins, C.J., seems to have followed that rule in the case in Bombay Burmah Trading Corporation v. Dorabji Cursetji Shroff 27 B. 415 : 5 Bom. L.R. 348. At page 418 he says : "It is, however, obvious that the financial and commercial position of the company may be seriously affected by the questions at issue, and having regard to that and to the importance to Indian Companies generally that these rights should be precisely defined in relation to the point that has arisen in this case, I think that we ought to certify that the case is a fit one for appeal to His Majesty in Council." Though Sir Lawrence Jenkins does not refer in his judgment to Motichand v. Ganga Prasad Singh 24 A. 174 : 29 I.A. 40 : 6 C.W.N. 362 : 4 Bom. L.R. 156, that case was cited before him in the course of the arguments. See the report at page 416.) Again in Sadagopa Chariar v. Krishnamoorthy Row 30 M. 185 at p. 188 : 4 A.L.J. 333 : 11 C.W.N. 585 : 5 C.L.J. 566 : 17 M.L.J. 240 : 9 Bom. L.R. 663 : 2 M.L.T. 204 (P.C.) : 30 I.A. 93, their Lordships of the Privy Council through Lord Macnaghten made the following pronouncement: The High Court refused leave to appeal on the ground that the matter in dispute was below the appealable value. Special leave, however, was granted on the representation that the appeal raised questions of law of general importance touching the rights of religious bodies in India in regard to public processions, and the right of one religious body to prevent a rival sect and an alien deity from invading precincts apparently public but devoted or appropriated from time immemorial to the observance of its own peculiar ritual and worship; and at the same time involved the consideration of the effect of previous decisions on similar questions between members of different sects of one and the same community." At page 190 their Lordships say: "Their Lordships may observe that it (the suit) does hot seem to involve such far-reaching issues as were put forward in the petition asking for special leave to appeal."