K.C. Paul and Company (P.) Ltd. vs Ajayendu Paul

P.N. Mookerjee, J.—This is an application for a certificate for leave to appeal to the Supreme Court against the judgment of this Court (P. N. Mookerjee and A. K. Dutt JJ.) dated May 10, 1968.

The certificate has been prayed for under Article 133(1) of the Constitution and the prayer is comprehensive in the sense that it has been made under all the different Clauses (a), (b) and (c) of the said Article.

In our view, however, the instant application should fail for, inter alia, the following reasons:

In the first place, the judgment and order of this Court, sought to be appealed from, is not a final order so as to satisfy the test of finality for purposes of that Article, as in spite of the same the basic proceeding, namely the execution proceeding, is still alive and, as a matter of fact, under the very same order the execution case has been directed to proceed with the utmost expedition.

In the second place, the instant case is not one which can satisfy the test of valuation either under Clause (a) or Clause (b) of the above Article. It is true that the judgment and order complained against is one of reversal, and therefore, once the valuation test is satisfied under either of the said two clauses the Petitioner would be entitled to leave as a matter of right. But, in view of the decision of this Court reported in Ramric Lal Saha Vs. Sachindra Narayan Roy and Others, which has reviewed the earlier cases of the different High Courts on the point in, the light of the later Supreme Court decision reported in Chhitarmal Vs. Shah Pannalal Chandulal, the test of valuation, as required under the said two clauses, would not be satisfied in the instant case. On similar materials and under similar circumstances, their Lordships A. C. Sen and A.N. Chakrabarti JJ. held that the valuation test, as required under the said clauses, would not be satisfied.

In the instant case, an additional point on this part of the case has been sought to be made out by attempting to include, within the subject-matter in dispute, the business which has already been set up by the Petitioner in the disputed premises. But, in our view, the said business would not be part of the subject-matter in dispute, as the instant case is one for ejectment and the decree in question, which is sought to be executed in the instant proceeding, is also one of ejectment of the Petitioner after termination of his tenancy in respect of the disputed premises. The question of the Petitioner''s business or the apprehended loss of business is not within the subject-matter in dispute, either in the Court of first instance or before the Supreme Court, nor would it be involved, either directly or indirectly, as property relevant for purposes of Clause (b) of the above Article. Indeed, it would be too remote for that purpose and, accordingly, on the authority of the decision of the Judicial Committee in Udoychand Pannalal v. P.E. Guzdar and Company (1925) L.R. 52 IndAp 207 it should not be taken into consideration for purposes of the said provision.

It is also well-known that the Judicial Committee in the said decision pointed out that no wide or liberal construction of provisions like the above need be made as, in an appropriate case, the party aggrieved would be entitled to requisite leave to appeal under the powers reserved to the higher Court.

In the third place, the instant case would not also come under Clause (c) of the above Article as none of the questions, with which we are concerned here, would satisfy the test laid down by the Judicial Committee for purposes of the said provision in Banarsi Parshad v. Kashi Krishna Naram (1900) L.R. 28 LA. 11. There the Judicial Committee pointed out, on the analogous provisions of Section 109(c) of the CPC that, for satisfying the test of a fit case for purposes of appeal to the Privy Council under the said statutory provision, which would apply with all force to fitness for purposes of appeal to the Supreme Court under Article 133(l)(c), the questions involved must be questions of great public or private importance. Mere existence of substantial questions of law would not be enough for the purpose. The instant case would not, in our opinion, satisfy the said stringent test to attract Clause (c) of the above Article.

We would, accordingly, hold that neither under Clause (a) nor under Clause (b) nor under Clause (c) of the above Article would the Petitioner be entitled to the certificate prayed for apart from the question that the basic test of finality of order, as required in the opening part of the said Article, would not be satisfied.

In the premises, this application fails and the certificate and leave prayed for is refused.

There will, however, be no order as to costs in this application.

12 Operation of this order will remain stayed until November 30,1969.

S.K. Chakravarti, J.

I agree.