Govindlal Bansilal vs Bansilal Motilal

Norman Macleod, C.J.—This is an application for a certificate for leave to appeal to the Privy Council. The first defendant wished to file a counter-claim at a very late stage of the case, and two questions arose : (1) whether the Court had jurisdiction to accept the counter-claim; and (2) whether, if it had jurisdiction, it should exercise its discretion in granting leave under Clause 12 of the Letters Patent. This Court held it had jurisdiction to entertain the counter-claim if it was considered on the facts of the case that leave should be granted, but considering the particular facts of the case it came to the conclusion that leave should not be granted. The question, therefore, arises whether this is a case which should be certified as a fit one to appeal to the Privy Council; and it can only be so if the appeal involves some substantial question of law. It has been argued by the appellant that because he had a question of law decided in his favour, therefore, the appeal involves some substantial question of law.

Reliance for that proposition has been placed on the case of Moran v. Mittu Bibee I.L.R (1876) Cal. 228. But, with due respect, that is a proposition which should not, considering the facts of this case, be applied. The only ground of appeal which the appellant could have, if the appeal was taken to the Privy Council, would be that the Court had wrongly exercised its discretion in refusing to grant leave, and as soon as his appeal was opened the point would be taken that the question of the exercise of its discretion by the lower Court did not involve any substantial question of law. No doubt, if the appeal is once admitted and opened for argument, then the question of law, in which the appellant has succeeded in the lower Court, can be contested by the respondent. But I do not think that it follows from the words of the last clause of Section 110, Civil Procedure Code, that because that course is open to a respondent, therefore the appeal itself involves some substantial question of law, so that we can issue a certificate. I think myself what this Court has to consider is the appeal itself, and as I have already stated, the only appeal, which the appellant could make, would be to ask the Privy Council to hold that our discretion has been wrongly exercised. Whether the discretion has been rightly or wrongly exercised may in some cases involve a question of law but it cannot be said that any substantial question of law would arise.

I think, therefore, that this is not a case in which a certificate should be granted, and the rule will be discharged with coats.

Shah, J.

I agree. Without expressing any dissent from the cases cited in the argument, viz., Moran v. Mittu Bibee I.L.R (1876) Cal. 228, Ashghar Reza v. Hyder Reza I.L.R (1889) Cal. 227 and the observations of Ranade J. in In re Vishwambhar Pandit I.L.R (1895) Bom. 699, I think the present application for leave to appeal to the Privy Council should be refused. Section 110, Civil Procedure Code, requires that the appeal should involve some substantial question of law; and it is difficult to say on the judgments of this Court that the point that the discretion was wrongly exercised in refusing to grant leave under Clause 12 of the Letters Patent, is a substantial question of law. It is true that in refusing leave, I have referred to the general consideration as to the jurisdiction of the Court to deal with Immovable properties situated outside British India. But as the discretion was exercised on the facts of the case, I cannot say that that ground can be treated as a substantial question of law within the meaning of Section 110. I should have been glad to see my way to let the appellant take his case to the higher tribunal But in view of the provisions of Section 110 of the Code, I do not see how we can grant the certificate prayed for.