Kailasa Tevar vs Kasiviswanathan Chettiar and Others

Somayya, J.—These are applications for leave to appeal to His Majesty in Council. Defendant l in the suit and respondent 1 in the appeal is

the petitioner. The suits out of which this and the connected petitions arise were filed by certain creditors for recovery of sums due on either

mortgage deeds or promissory notes executed by the petitioner. The petitioner was defendant 1 in the trial Court and the other members of his

family were impleaded as defendants 2 to 7. Defendant 2 is his brother and defendants 3 to 7 are his paternal uncle''s sons.

In 1895 there was a division between the two branches and it is in evidence that there was also a division between the petitioner and his brother

as a result of O.S. No. 36 of 1935. The family business was kept joint and the petitioner was managing the business. The petitioner was ex parte in

all the suits. The other defendants contended that they were not liable for the debts incurred by defendant l. The trial Court exonerated some of the

defendants and gave a decree against the others in all the eight suits. Both the parties filed appeals to the High Court and there were 11 appeals in

all. All the appeals were heard together and disposed of by a common judgment. This Court held that all the members of the two branches were

liable in all the suits. In all the eight suits therefore the creditors succeeded in getting a decree against all the defendants.

By the time the appeals came on for hearing, the Madras Agriculturists'' Relief Act(4 of 1938) had been passed by the Local Legislature. By

virtue of the provisions of that Act, certain benefits were conferred upon agriculturists to have their debts scaled down in accordance with the

provisions of that Act. Applications were filed by defendants 2 to 7 for scaling down the debt. Even those defendants against whom the suits had

been dismissed by the lower Court filed such applications to provide for the contingency of the High Court passing a decree against them.

According to a Full Bench decision of this Court, Such applications must be disposed of by the High Court after calling for such findings as may be

necessary from the lower Court. There was a dispute whether the defendants were agriculturists and entitled to the benefits conferred under the

Act and also on the question whether the defendants were precluded from obtaining any relief by reason of certain exceptions, one of which is that

a person who paid house tax in respect of buildings of the annual rental value of Rs. 600 and upwards is not entitled to the benefits under the Act

even though he was an agriculturist. The petitions filed by defendants 2 to 7 were sent down to the trial Court for finding on these questions. It may

be mentioned that defendant 1 (the petitioner herein) was made a respondent in these petitions. When the matter went back before the lower

Court, defendant 1 appeared by a pleader. The District Judge held that the defendants were agriculturists and that it was not proved that they paid

house tax on houses of the annual rental value of Rs. 600 or upwards. The District Judge was, therefore, of opinion that the petitioners were

entitled to the benefits under the Act. As regards the amounts which would be due to each of the creditors in case the scaling down was permitted,

both parties filed memoranda of consent showing what the amount would be if the debts were scaled down. In these memoranda defendant 1''s

pleader also signed. When the matter came back to this Court after receipt of findings from the lower Court, the creditors disputed the correctness

of the findings of the lower Court and also raised the further contention that in any case defendant 1 ought not to be given the benefit of the Act as

he had not filed any application to have the debt scaled down. This Court rejected the contentions of the creditors on the merits and held that as

regards defendants 2 to 7 the debts should be scaled down and the figures given in the memoranda of consent filed by the parties were adopted.

But as regards defendant 1- the petitioner herein-this Court held that as he had not filed any application, the decree against him should stand

undisturbed.

After this Court passed the decrees, the petitioner moved this Court to have the ex parte decree against him set aside so that he might file

applications under the Act and claim the benefits conferred thereby. We dismissed these applications holding that the applicant did not show

sufficient reason for not appearing at the hearing of the appeals. This petition and the connected petitions are filed by the petitioner seeking leave to

appeal to His Majesty in Council against the judgment passed by this Court holding that as he had not filed any application of his own, he is not

entitled to the benefits of the Act. The respondents concede that this is a case to which the provisions of Order 45, Rule 4, Civil P.C., would

apply. The questions are substantially the same in all the suits both in the lower Court and here; and they were all disposed of by a common

judgment. The petitioner is therefore entitled to consolidate all the appeals for purposes of valuation. In some of these suits the subject-matter of

the claim is over Rs. 10,000 and it is conceded that even the difference between the amount of the decree and the amount due if the debt is scaled

down is over Rs. 10,000. So, if all the suits are consolidated, there is no question that the total amount will be more than Rs. 10,000.

The only question is whether the decree of this Court is one of affirmance of the decision of the Court below and whether in case it is held that

the decree is one of affirmance, the appeal to His Majesty in Council involves a substantial question of law. The Court below passed a decree

against defendant l as he was the executant of the document. This Court affirmed the decree; in fact there was no appeal by defendant 1 at all. It is

difficult to see how it can be said that the decree of this Court is not one of affirmance of the decisions of the Court below. It is argued by the

petitioner that the applications filed by the other defendants under the Madras Agriculturists'' Relief Act were sent down to the lower Court, that

that Court returned a finding in favour of the applicants and also in favour of the petitioner, defendant 1, that when this Court refused to accept that

finding as regards the petitioner on the ground that he had not filed an application of his own, this Court was not affirming the decision of the trial

Court on that question and that therefore the decree of this Court is not one of affirmance of the decision of the Court below. There is no

substance in this contention. The decree of this Court referred to in Section 110, Civil P.C., so far as defendant 1 is concerned is one of

affirmance. As we have pointed out, there was in fact no appeal by defendant 1. In Tassaduq Rasul Khan v. Kashiram (1903) 25 All. 109 the

Judicial Committee held that even though the judgment of the High Court is not based upon the same grounds on which the first Court''s judgment

was based, if the decree passed by the High Court is one of dismissal, it would be a case of affirmance of the decision of the lower Court. Where

some issues alone were decided by the trial Court they being sufficient for the decision of that Court and the High Court calls for findings on other

issues and the finding is not accepted by the High Court and the result is one of dismissal of the appeal, the same result should, we think, follow. If

the grounds of the decision of the High Court may be different from those of the decision of the trial Court as held in the decision just cited, we fail

to see how it could be said that in the latter case the result would be different. The ease before us is no doubt one in which a fresh right was

conferred upon certain classes of persons by Madras Act 4 of 1938. The decision of the trial Court was in 1937. We fail to see any difference

between a decision in cases where no finding was given by the trial Court on certain issues and findings are called for but not accepted by the High

Court and the decision of the trial Court is in consequence affirmed by this Court, and the case where a : fresh right is given by the Legislature and

on the question whether the petitioner is entitled to the benefits of the Act the two Courts differ and the appeal is dismissed. We are therefore of

opinion that the decree of this Court is one of affirmance by the decision of the lower Court.

The next question is whether the appeal involves a substantial question of law. The only question of law that the petitioner seeks to raise is

whether he is an agriculturist and not excepted by the exceptions referred to above. In the counter affidavit filed by the respondents, they point out

that the petitioner had become divided from his brother, (defendant 2) as a result of O.S. No. 36 of 1935, Subordinate Judge''s Court, Tiruvarur,

and that defendant 1 was during the relevant period in possession of house property of an annual rental value of more than Rs. 600 and was

assessed to house tax. They say that even if defendant 2 his brother had been found to be entitled to the benefits of the Act, it does not follow that

the petitioner, defendant l should also be entitled to the same benefits. The determination of this question involves an investigation of facts. There is

no question of law involved. If the petitioner had during . the two years preceding October 1937 house property of the annual rental value of more

than Rs. 600 and was assessed to house tax in respect of such buildings, then it is conceded by the petitioner that he is not entitled to the benefit

under the Act and it is equally conceded on the other side that if otherwise the petitioner is entitled to the benefits of the Act. Thus the right of the

petitioner does not involve any question of law, but involves only a pure question of fact. Thus, there is no room for the argument that the appeal

involves a substantial question of law. These petitions are, in our opinion, unsustainable. It is said that an appeal has been filed by a creditor against

the decision of this Court and that it has been admitted. But that, in our opinion, does not confer on the petitioner a right which he does not

otherwise possess. The petitions are dismissed with costs.