Abraham vs Hyderabad Construction Co.

Srinivasachari, J.—This is an application for leave to appeal to the Supreme Court against the judgment and decree of this Court dated 8-12-1955. The Petitioner herein has sought leave to appeal under Article 133(1)(a) of the Constitution. The appeal to this Court arose, out of a suit filed by the Petitioner for the recovery of an amount due from the Respondent on account of work carried out by him as contractor.

The Plaintiff stated that there were amounts due to him in respect of various heads of accounts and he assessed his claim at Rs. 29,263-4-8. This claim included besides the amount due to him on various heads a sum of Rs. 9,012-0-0/- as damages suffered by the Plaintiff in consequence of his work having been stopped and his having had to pay the workers their wages. The trial Court decreed the Plaintiff''s suit only to the extent of Rs. 2,270-11-8/- with costs with future interest at the rate of 6% per annum from the date of the suit.

There were two appeals preferred by the Plaintiff and the Defendant, the Plaintiff in respect of the disallowed claim and the Defendant in respect of the amount actually decreed. We heard the arguments in both the appeals together and delivered one common judgment on 8-12-1955 decree tag the Plaintiff''s suit to the extent of Rs. 3,111-11-4/- and allowing future interest on the aforesaid sum. Thus the amount of the decree passed by the lower Court was enhanced by this Court by a sum of Rs. 840-15-8/-.

In order to overcome the objection that the Petitioner would have to show that there was a substantial question of law involved it was sought to be argued by the learned advocate for the Petitioner that the decree passed by the High Court could not be regarded as one of affirmance end where, therefore, there was no decree of affirmance and the subject matter of the appeal before the Supreme Court amounted to over Rs. 20,000/- the Petitioner was entitled to leave as a matter of course.

The question, therefore, is as to whether the decree passed by the High Court is to be regarded as one of affirmance or not, for the amount of the subject matter of the appeal admittedly is above Rs. 20,000/- and that way it satisfies the requirements of Article 133(1) of the Constitution.

The test laid down for determining as to whether the decree of the High Court could be regarded as of variance is as to whether the High Court has differed from the lower Court on a principle. If having found an error in the calculation made by the trial Court or because of the fact that the trial Court omitted a particular item the High Court seeks to substitute a different figure for each item of work or items of work it cannot be regarded as varying the decree of the lower Court. In this connection a reference to Section 110, CPC would be necessary. The last portion of the aforesaid section reads as under:

And where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order the appeal must involve some substantial question of law.

Putting it conversely it would not be necessary to show that the appeal involves substantial question of law where the judgment, decree or final order appealed from does not affirm the decision of the Court below. Therefore, the whole question will turn upon whether our judgment affirms the decision of the City Civil Court or not. As has been observed above, there has been no reversal or variation in this case because we have not differed from the lower Court on any of the matters which arose for decision in the case.

Our attention was invited to two matters in our judgment which according to the learned advocate amounted to a variation of the lower court''s judgment. As regards the face work there was a controversy between the Appellant and the Respondent with regard to the extent of the work done. The trial Court did not award the Petitioner the amount due for 3,422 cubic feet alleged to have been completed by him out for a less measurement. In our judgment we stated that the Appellant''s own witness stated that 3,422 cubic feet work was done and, therefore, there was no reason not to award the Petitioner the amount due for that length of work.

The question as to how far a particular decision of the High Court could be regarded as a decision of affirmance has been the subject of judicial decisions and the point is not free from difficulty.

There is, however, a decision of the Privy Council reported in AIR 1925 60 (Privy Council) . That was a case where it was held that if the Plaintiff''s claim was a money claim which was decreed by the trial Court as to a certain part and then on appeal decreed by the appellate Court as to a larger part but still not fully decreed the appellate Court''s decision would not be regarded as decision of affirmance. In that case before the Privy Council the facts were these.

The trial Court awarded a sum of Rs. 800/- per annum as maintenance. This amount was increased to Rs. 1,200/- by the High Court. The widow, now ever, claimed Rs. 3,000/-. The Privy Council held that the widow had a right of appeal to the Privy Council. The decision of the Privy Council amounts to this that an Appellant is entitled to challenge the decision or a High Court even if the High Court has modified in his favour a decision of the trial Court; provided, of course, that the subject matter of the appeal is within the appealable value.

Following this case the Allahabad High Court in a Full Bench decision in the case of Jaggo Bai Vs. Harihar Prasad Singh, , held that even If the High Court had modified the decision of the trial Court in his favour, viz., the proposed Appellant to the Privy Council the party was entitled to leave as of right., It may also be pointed that the view taken by the Madras High Court was different and it held that it is only in a case where the trial Court''s decree was varied by the High Court to his prejudice that it could be regarded as a decision of variance but if the judgment of the High Court was different from that of the trial Court to the, advantage of the Appellant then it will only be Regarded, as a decree of affirmance. Vide in this connection P.R.M.P.R. Perichiappa Chettiar Vs. Nachiappan, .

The Patna High Court in Raja Brajasunder Deb and Others Vs. Raja Rajendra Narayan Bhanj Deo, held that where the decree of the High Court reverses in part the decision of the lower Court whilst maintaining it with regard to the remainder of the claim the decree of the High Court cannot be said to affirm the decision of the Court below and, therefore, an appeal to the Privy Council was competent even on points of concurrence between the High Court and the lower Court without proving a substantial question of law.

The Calcutta High Court in the case of Probod Chandra Roy v. Harahari Roy, followed the same view as held by the Patna High Court that where there has been a variation with regard to a certain matter and affirmance with regard to others the decision could not be regarded as a decision of affirmance - Vide in this connection Probodh Chandra Roy Vs. Hara Hari Roy and Another, . The Madras High Court had occasion to consider about this question in the case of Gangadhar Ayyar v. Subrahmania Sastrigal reputed in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, wherein it was held that where the High Court varied the decree of the trial Court in respect of four of the eleven items of the property it could be regarded as a decree of variation and not of affirmance wherein the Petitioners for leave to the Privy Council would be entitled as of right to appeal.

Likewise a Special Bench of the Allahabad High Court in Nathu Lal Vs. Raghubir Singh held that there was a right bf appeal as a matter of right in a case under the following circumstances:

The suit was for setting aside a sale. The trial Court decreed the suit on condition that the Plaintiff paid a certain sum of money but Defendant appealed against this decree while the Plaintiff filed cross-objection before the High Court.

The High Court dismissed the appeal and allowed the cross-examination of the Plaintiffs. The Defendant applied for a certificate for leave to appeal. The learned Judges held that there was a variation of the decree of the trial Court in this case and as the decree of the High Court was entirely to the prejudice of the Defendant wanting to appeal they granted leave.

Having regard to the trend of decisions as has been stated above, even if there was a little amount of doubt as to whether in the particular case before us leave could be granted to the Petitioner we are inclined to resolve the doubt in his favour and give him the benefit of the right of appeal to the Supreme Court. We therefore grant leave. Let the certificate be issued under Article 133(1) of the Constitution.