A V SUBRAMANIA AIYAR Vs. SELLAMMAL

JUDGEMENT

(1.) In this case the amount or value of the subject matter of the suit in the Court of First Instance was less than Rs. 10,000 but the amount or value of the subject matter in dispute on appeal to His Majesty in Council exceeds that sum owing to the claim for mesne profits for the period between the institution of the suit and the petition for a certificate. It is clear that the case does not satisfy the provisions of the first paragraph of Section 110 C.P.C. but we are asked to grant the certificate on, the ground that in the circumstances the decree of the High Court involves "directly or indirectly some claim or question to or respecting property of like amount or value" within the meaning of the second paragraph. If this contention be accepted, a certificate must be granted in any case in which the amount or value of the subject matter in dispute on appeal to His Majesty in Council is not less than Rs. 10,000, whether or not the amount or value of the subject matter of the suit in the Court of First Instance fell below Rs. 10,000, and this provision becomes wholly nugatory. In a case where the value of the subject matter was less than Rs. 10,000, in the Court of First Instance but the value of the subject matter on appeal to the Privy Council exceeded that sum owing to the accrual of interest in the meantime their Lordships held that the appellants had not brought themselves within the section. Moti Chand v. Ganga Pershad Chand, Moti Chand ex parte (1901) L.R. 29 I.A. 10 and I do not think it can make any difference whether the original deficiency in value is subsequently made up by the accrual of interest, or by a claim for mesne profits for the intervening period, or by costs. The decision in Dalgleish v. Damodar Narain Chowdry (1906) I.L.R. 33 C. 1286, proceeded on the authority of Mohideen Hadagain v. Pitchey (1893) A.C. 193, a case under the Ceylon Ordinance No. 1 of, 1889 which does not impose any condition as to the amount or value of the subject matter of the suit in the Court of First Instance. This condition was first imposed in India by the Privy Council Appeals Act of 1874 (Act VI of 1874). The order of 10th April 1838 had prescribed that the amount or value of the subject matter in dispute in appeal to His Majesty in Council must be Rs. 10,000 or upwards. The alternative which now forms the second paragraph of Section 110 C.P.C. was introduced in Clause 39 of the Letters Patent which contained a proviso "that the sum or matter at issue is of the amount or value of not less than Rs. 10,000 or that such judgment, decree or order shall involve directly or indirectly some claim, demand, or question to or respecting property amounting to or of the value of not less than Rs. 10,000." So far the amount or value of the subject matter of the suit in the Court of First Instance did not in any way affect the right of appeal, but it is clear to my mind that in 1874 the legislature intended to alter this and by the new provision inserted in the section to impose an additional restriction with reference to the amount or value of the suit when filed. It is, of course, necessary co read the whole section together and to give effect to every part of it, and when doing so it becomes necessary in my opinion, in order to give effect to the new provision in the first paragraph to put a restrictive construction on the general words of the second paragraph which are reproduced from Section 39 of the Letters Patent and to read them in their present collocation as applying only to cases which involve some claim or question to or respecting property additional to the actual subject matter in dispute in the appeal and to be taken into account therewith in making up the appealable value. Something might be said for this construction of the alter native provision as it stood in Clause 39 of the Letters Patent and I think that it is imperatively required in the present Section 110 C.P.C. which first appeared as Section 5 of the Act, of 1874, if the provision in the earlier part of the section is not to be rendered nugatory. Some difficulty is no doubt occasioned by the retention in the second paragraph of the words "involve directly." But I think my learned brother in his judgment which I have had the advantage of reading has shown how effect may be given to the word directly consistently with this construction; and in any case I think that in the section as it now stands the words, "involve directly," cannot be read as including cases which involve nothing but the actual subject matter in dispute in the appeal. Cases which involve nothing else are in my opinion governed exclusively by the first paragraph. The petition is dismissed with costs. Srinivasa Aiyangar, J.

(2.) This is an application for leave to appeal to His Majesty in Council The original suit was to recover possession of a portion of a house with mesne profits from the defendant. Though the plaintiff claims the whole house he does not sue for the remaining portion as he is in possession of it. It is, however, admitted that the market value of the whole house together with the amount claimed for mesne profits up to the date of the institution of the suit is much less than ten thousand rupees. It is stated that the value of the whole house together with mesne profits as claimed by the plaintiff up to the date of the decree in appeal would amount to over ten thousand rupees. Two points are taken for the petitioner, first that the value of the subject matter of the suit in the Court of First Instance should be taken to be above ten thousand rupees, second that whether the subject matter of the suit in the Court of the First Instance was above ten thousand rupees or not, the final decree of this Court involves a claim to property of over ten thousand rupees in value. As regards the first point, petitioner contends that the subject matter of the suit in the Court of First Instance includes mesne profits subsequent to the date of the suit. If this contention is right, mesne profits subsequent to the date of the institution of the suit up to the date of the final determination by the Judicial Committee, or even beyond, till the delivery of possession of the property, or 3 years after the date of the final decree, whichever event first occurs, could be the subject matter of the suit, and its value would vary with the length of time during which the suit may be pending in the Courts. This construction renders the enactment of this portion of the, clause perfectly useless; for there can be no case in which the matter in dispute on appeal to his Majesty in Council would be of the appealable value in which the subject-matter of the suit would not at least be of the same value. Prior to Act VI of 1874, it was well settled that interest on money claims and mesne profits of immovable property subsequent to the date of the institution of the suit actually awarded by the decree appealed against may be added in computing the value of the matter in dispute in appeal to His Majesty in Council, but not interest accruing subsequent to the decree, and, if that amount was Rs. 10,000 or Over, a party was entitled to appeal, though the value of the subject-matter of the suit in the Court of First Instance was less. Gooroopershad Khoond v. Juggat Chunder (1860) 8 M.I.A. 166 at 168, Doorga Doss Chowdry v. Ramanath Chowdry (1860) 8 M.I.A. 262 at 264, Goordoss Roy v. Gholam Mowlah (1862) Marshall s reports, p. 24, see also Bank of New South Wales v. Owston (1879) 4 App. Cas. 270, at 274. Act VI of 1874 for the first time enacted that the value of the subject matter of the suit in the Court of First Instance should also be ten thousand rupees or upwards and imposed an additional restriction on the right of appeal. I think except in British India and Straits Settlements no such restriction is to be found in the laws of the other colonies or British possessions. In Motichand v. Ganga Parshad Singh (1901) L.R. 29 I.A. 40 : 24 A. 174, the Judicial Committee expressly decided that when the amount claimed in the suit was less; than ten thousand rupees, no appeal lay to His Majesty in Council, though the amount of the matter in dispute in appeal by the addition of interest subsequent to the institution of the suit came to ten thousand rupees or upwards. This decision is conclusive on the question, and I am unable to draw any distinction between interest and mesne profits in this respect. The petitioner relied on Dalgleish v. Damodar Narain Choudry (1906) I.L.R. 33 C. 1286 and Basanta Kumar Roy v. Secretary of State for India (1910) 6 I.C. 792 in support of his contention. In the first of the above cases it seems to have been assumed that future mesne profits formed part of the subject-matter of the suit, and reliance was placed on the Judgment of the Judicial Committee in Mohideen Hadgian v. Pitchey (1893) L.R.A.C. 193. That was a case from Ceylon and attention of the learned Judges, of the Calcutta High Court was apparently not drawn to the provisions of the Ceylon Ordinance, which contains no clause similar to the first portion of Clause I of Section 110 of the Code of Civil Procedure. Though the case of Motichand v. Ganga Prashad Singh (1901) L.R. 29 I.A. 40, was cited in the argument there is no reference to it in the Judgment. In the second case, it is said that "as the Court could provide in the decree for the payment of mesne profits from the institution of the suit, until the delivery of possession or until the expiration of 3 years from the date of the decree, such mesne profits can legitimately be regarded as part of the subject matter of the suit." So also can the Court award interest from the date of the institution of the suit up to the date of payment or realisation. There is no reference in the judgment to the case in Motichand v. Ganga Prashad Singh (1901) L.R. 29 I.A. 40. In the case of future mesne profits, the cause of action, it must be remembered, does not accrue even at the date of the institution of the suit. With the greatest respect to the learned Judges I am unable to follow these decisions. I therefore disallow the 1st contention. As to the second point, petitioner contends that inasmuch as the decree of this Court directs him to surrender possession of the house and pay mesne profits the decree necessarily involved a claim to property of over the appealable value. This construction renders the whole of the 1st clause nugatory. It must be remembered that provisions similar to these are to be found in the laws of a large majority of the colonies, (see the table in Burge s Colonial Laws Vol. I 362 et. seq) and it is impossible to construe the second clause of Section 110 of the Code of Civil Procedure so as to render the first perfectly useless. If the second clause stood by itself (see Wheeler s Privy Council Practice p. 694) it would be legitimate to construe it in the manner suggested, as the word "involves" is sufficiently wide to cover direct adjudications in respect of the subject-matter in dispute. In this case we have to take both the clauses together so as to give a meaning to both. In my judgment, the first clause applies to cases where the decree awards a particular sum, or property of a particular value, or refuses that relief, (i.e.), to cases where the object-matter in dispute is of a particular value. In fact, the words objects in dispute are used in the provisions relating to appeals from Guernsey. If the operation of the decision is confined only to the particular object-matter, Clause 2 does not apply and unless the case satisfies the conditions in Clause 1, there is no right of appeal, If the decision beyond awarding relief in respect of the particular object-matter of the suit affects rights in other properties, Clause 2 would apply; also if the matter in dispute is one which is incapable of valuation as in the case of easements, Clause 2 may apply. A few illustrations from the decided cases would make the matter plain. In Sreemutty Ranee Surnomoyee v. Maharajah Sutteshchunder Roy (1860) 8 M.I.A. 165 the plaintiff sued to establish his right to enhance the rent of a holding in the possession of the defendant, which the defendant claimed to hold at a fixed rent of Rs. 65. The plaintiff obtained a decree establishing his right to enhance the rent to Rs. 800 or thereabouts. The question was raised whether the value of the subject-matter in appeal to the Privy Council was the capitalised value of this Rs. 800 which would be the amount by which the value of the defendant s estate would be diminished. Their Lordships found it difficult to bring the case within the words of the Order in Council of April 10, 1838, but gave special leave to appeal on the ground that the decision involved a claim to property of more than ten thousand rupees in value. I may draw attention to the fact that this decision was given in the year 1860 and the present second clause was introduced into the Letters Patent in the year 1862.

(3.) In Amar Chandra Kundu v. Shoshi Bhushan Roy (1903) I.L.R. 31 C. 305 the plaintiff, a tenant-in-common, sued for a mandatory injunction directing the defendant, another tenant- in-common, to demolish buildings erected by him on a plot of common land. The subject- matter of the suit was for purposes of Court fees valued at Rs. 1,500. The plaintiff obtained a decree in the High Court, the result of which was to oblige the defendant to remove buildings worth more than ten thousand rupees. Leave to appeal to the Privy Council was applied for and granted. In a similar case in Madras, Sreemuth Devasikamoney Pandarasannadhi v. Palaniappa Chettiar (1910) I.L.R. 34 M. 535, 20 M.L.J. 970, the plaintiff obtained in the High Court a decree for possession of a piece of land worth at the most Rs. 2,000; the defendant had built on the land and the buildings were valued at over Rs. 20,000, and he had to remove them. Leave to appeal to the Privy Council was applied for by the defendant and granted.