A.V. Subramania Ayyar vs Sellammal

John Wallis, C.J.—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

bat the amount or value of the subject matter in dispute in 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, Civil Procedure Code, 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 leas 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

Prasad Singh 29 I.A. 40, 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 Chowdhry

(1906) 33 Calc. 1286 proceeded on the authority of Mohideen Hadjiar v. Pitchey (1893) A.C. 193, a case under the Ceylon Ordinance No. I 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, Civil Procedure Code, 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

amounting 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 tiled, It is of course necessary to 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 now 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 alternative provision as it stood in Clause (39) of the Letters Patent, and I think that it is imperatively required in the present Section 110, CPC

(Act V of 1908), 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 Ayyangar, J.

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 ho is in possession of it.

It is however admitted that the market value of the g 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 the 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 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 three

years after the date of the final decree, whichever event first occurs, would 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 casein 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

mesae 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 over 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; Gooroopersad Khoond v. Juggutchunder (1860) 8 M.I.A. 166 and Doorga Doss Chowdry v. Ramanauth Chowdry (1860) 8

M.I.A. 262, Goorodoss Roy v. Gholam Mowlah (1862) Marsh 24 and Bank of New South Wales v. Owston (1879) 4 A.C. 270. 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 Moti Chand v. Ganga Prasad Singh 29 I.A. 40 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 Chowdhry ILR (1906) Calc. 1286 and Basanta Kumar Roy v. Secretary of State for India

in Council (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 Hadjiar v. Pitchey

(1893) A.C. 193. That was a case from Ceylon and the attention of the learned Judges of the Calcutta High Court was apparently not drawn to

the provision of the Ceylon Ordinance which contains no clause similar to the first portion of Clause (1) of Section 110 of the Code of Civil

Procedure. Though Moti Chand v. Ganga Prasad Singh 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 three 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 Moti Ghand v. Ganga Prasad Singh 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 first contention. As to the second point, petitioner contends that, inasmuch as the

decree of this Courts 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 first 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, volume I, page 362) and it is

impossible to construe the second clause of Section 110 of the CPC so as to render the first perfectly useless. If the second clause stood by itself

(see Wheeler''s Privy Council Practice, page 694) it would be legitimate to construe it in the manner suggested, as the word ""involves"" is sufficiently

wide to cover direct adjudication 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 So 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 Sri Mutty

Ranee Sumomoyee v. Maharajah Suttesschunder 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.

In Amar Chandra Kundu v. Shoshi Bhushan Roy (1904) ILR 31 Calc. 305 (P.C.) 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. Valaniappa Chettiar ILR (1911) Mad. 535 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.

In Muttusawmy Jagavera Yettapa Naiker v. Vencataswara Yettia (1965) 10 M.I.A. 313 a decree was passed by the Civil Court of Tinnevelly

in appeal awarding Rs. 2,500 a year for maintenance that being the highest sum which the first Court had jurisdiction to give and this decree was

confirmed by the High Court. An application for special leave was made to Her Majesty in Council. In discussing the question whether the

application should not have been made to the High Court first, their Lordships came to the conclusion that it could not have been made there on

the ground that the matter in dispute was below Bs. 10,000. It mast however be rioted that the facts of, that case were peculiar.

In Sauvageau v. Gauthier (1874) L.R. 5 P.C. 494 A who had obtained an assignment of certain choses in action from B sued one of the

debtors G to recover the debt due by him. The assignor had become an insolvent and his assignee in bankruptcy intervened in the suit and claimed

the sum as against A the private assignee contending that the assignment was void as against him. His contention was disallowed and he applied for

leave to appeal to the Privy Council. The Privy Council declined to give leave; but they say this, that if he had instituted a suit against the private

assignee for a declaration that that assignment was bad, the subject-matter of the suit would have been over the appealable value, but inasmuch as

his claim was limited to only one of the debts, he was not entitled to leave; they declined to grant special leave on the ground that that decision

need not necessarily affect the title to the other debts.

In Ajuas Kooer v. Mussamut Luteefa (1872) 18 W.R. 21, where the suit was to establish the plaintiff''s rights to take water from a channel to

irrigate his land, Markby, J., held that the value of the subject matter in dispute was the amount by which the value of the land would be diminished

if the right to take the water was not granted. The learned Judge draw a distinction between ""the value of the relief"" and the value of the subject-

matter.

In Macfarlane v. Leclaire (1862) 15 M.P.C.C. 181, the plaintiff sued for a sum of money being the debt due to him from X. He applied for

attachment before judgment and attached certain properties in the hands of Y on the ground that Y was holding those properties on behalf of X. Y

claimed the properties as his own under a conveyance from one P who himself obtained the properties from X. Plaintiff replied that the conveyance

from X to P and P to Y were fraudulent as against the creditors of X. The plaintiff succeeded. The amount of debt due to him for which he

obtained a decree was less than the appealable value, but as the adjudication was also that the purchase by Y was not valid as against the creditors

of X the decision involved a question of title to the property of over the appealab''e value. The Privy Council in the absence of a clause like the

second clause were obliged to bring it within the words ""matter in dispute in appeal to the Privy Council.

The above cases except Amar Chandra Kundu v. Shoshi Bhushan Roy (1904) 31 Calc. 305 and Sreemuth Devasikamoney Pandarasannadhi

v. Palaniappa Chettiar (1911) 34 Mad. 535, were decided when the order in Council dated 10th April 1838 or provisions similar thereto were in

force. They afford instances of cases in which the-subject-matter of the suit was incapable of a real or accurate-valuation or when the value of the

subject-matter of the suit was below the appealable value, but the decision directly involved a claim or question respecting property of over ten-

thousand rupees in value. Even if the words ""subject-matter of the suit"" or ""matter in dispute in appeal"" do not mean the object matter, but connote

the jural relationship between the parties--see Ramaswami Ayyar v. Vythinatha Ayyar ILR (1903) mad. 760 and Kaveri Ammal v. Sastri Ramier

(1903) 26 Mad. 104--the present case would clearly come within the first clause and the second clause would have no-application whatsoever. In

some cases it may be difficult to determine under which clause a particular case falls--see Ram Kirpal Shukul v. Rup Kuar ILR (1881) All. 633

and Bhagwat Sahai v. Pashupati Nath Bhose (1906) 3 C.L.J. 257--but I do not think that this would in any way affect the decision as I think that

in all cases in which the final decision involves a claim or question to property of a particular value, the-decision of the first Court also would merely

involve a claim or question in respect of property of the same value. The following cases are instances in which the decision involves indirectly a

claim or question to or in respect of property of the appealable value: Baboo Gopal Lall Thakoor v. Teluk Chunder Rai (1960) 7 M.I.A. 548, Ko

Khine v. Snadden (1868) L.R. 2 P.C. 50, Joogulkishore v. Jotendro Mohun Tagore ILR (1882) Calc. 210. In the matter of the petition of

Khwaja Muhammad Yusuff ILR (1896) All. 196 Sri Kishan Lal v. Kashmiro ILR (1913) All. 445, I am supported in the construction which I

have adopted by the decision in De Silva v. De Silva (1904) 6 Bom. L.R. 403, and a case from the Colonies--Gardner v. McCulloch (1876) 2

V.L.R. 128--cited in Wheeler''s Privy Council Practice, page 604. In Dalgleish v. Damodar Narain Chowdhry ILR (1906) Calc. 1286, already

cited a different view was taken, but no reasons were given for the conclusion. I am unable to follow it. On the other hand in Moti Chand v. Ganga

Prasad Singh ILR (1902) 24 All. 174, already referred to the Judicial Committee proceed on the assumption that the second clause was

inapplicable to cases of this sort. I would thorefore disallow this contention also.