BENARES BANK LTD Vs. RAJNATH KUNZRU

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council. There were two cross-appeals filed in this Court which were connected and disposed of by one judgment, but separate decrees were prepared in the two cases. Leave to appeal to His Majesty in Council has already been granted an the defendant's appeal which was allowed and the decree of the Court below was reversed and the claim with regard to the subject-matter in dispute in that appeal disallowed. The decree in the plaintiff's appeal was one of dismissal of the appeal, and in that sense an affirmance of that part of the decree of the first Court which had dismissed the plaintiff's claim in part. But the operative order of the High Court was that the defendant's appeal should be allowed and the decree of the Court below modified and the suit dismissed in toto.

(2.) The question which arose in the plaintiff's appeal was to a large extent one of fact. Learned Counsel for the plaintiff concedes that no substantial question of law arises in this case and that therefore the case does not fulfil the requirements of Section 110, Civil P.C. He however contends that the decision of the Court below has not been affirmed inasmuch as the cross-appeal was allowed and the decree of the trial Court was modified and the whole claim was dismissed. It was distinctly held in the case of Chiranji Lal V/s. Behari Lal 16 A.L.J. 864, that in a case of two cross-appeals there is no right of appeal to the Privy Council in one appeal in which the appeal is dismissed, merely because the cross-appeal has been allowed. But subsequent to the decision of that case their Lordships held in Annapurna Bai V/s. Rup Rao , that where a widow claiming maintenance allowance was allowed only a part of the amount claimed by her by the first Court and that amount was increased in her favour by the High Court, she had a right to appeal to His Majesty in Council for claiming the balance of the original amount put forward in the plaint. This case has, of course, bean followed by most of the High Courts in India.

(3.) In the case of Nathu Lal V/s. Raghubir Singh 1931 A.L.J. 968, a Full Bench of this Court has held that where a cross-objection has been allowed, but the appeal itself has been dismissed, the decision is not one of affirmance and that there is an appeal to their Lordships of the Privy Council as of right. As regards cross-appeals, the view expressed by this Court has been followed by the Lahore High Court in Asa Ram V/s. Kishen Chand 11 Lah. 405, corresponding to 1930 A.I.R. Lah. 554. The Madras, Calcutta Bombay High Courts have gone even a step further, see Ramanathan Chetti V/s. Subramanian Chetti 1926 A.I.R. Mad. 1024, Narendra Lal Das V/s. Gopendra Lal Das Kapurji Magniram V/s. Pannaji Debi Chand 1929 A.I.R. Bom. 359.