S.A. Ramanatha Sastrigal vs Koladi Krishna Menon

Alfred Henry Lionel Leach, C.J.—These civil miscellaneous petitions can be dealt with conveniently in one judgment. In C.M.P. No. 3026

of 1939 the petitioner asks that he be granted leave to appeal to the Federal Court against the order passed by this Court in C. R.P. No. 1603 of

1938. In C.M.P. No. 3028 of 1939 he asks for leave to appeal to the Federal Court against the order of this Court in C. R. P. No. 1604 of

1938. In C. M. Ps. Nos. 3027 and 3029 of 1939 the petitioner asks for orders dispensing with deposits for printing charges and directing the

office to issue bills setting out the amounts of the printing charges. His learned advocate has indicated that he is prepared to pay the bills at once. In

C.M.P. No. 3030 of 1939 the petitioner asks for an order consolidating the proposed appeals to the Federal Court.

The petitioner filed two suits against the respondent in the Court of the Subordinate Judge of Ottapalam to recover amounts claimed to be due

on promissory notes. The suits were subsequently transferred to the Court of the Subordinate Judge of Calicut and there numbered as O.S. Nos.

52 of 1939 and 53 of 1939 respectively. In the first suit the petitioner asked for a decree for Rs. 13,932-13-4 and in the second suit for a decree

for Rs. 19,762-1-3. The respondent pleaded that he was an agriculturist and therefore entitled to the benefit of the scaling down provisions of the

Madras Agriculturists'' Relief Act. The petitioner denied that the respondent was an agriculturist within the meaning of the Act. He also contended

that the Act was ultra vires the Provincial Legislature. A preliminary issue was framed in each suit on the question of the validity of the Act and the

Subordinate Judge held that it was ultra vires. The respondent then filed applications in this Court asking it to reverse the decision in the exercise of

its revisional powers. Before the applications came into the list for hearing a Full Bench of this Court had held in Mada Nagaratnam v. Puvvada

Seshayya (1939) 1 M.L.J. 272 : ILR (1939) Mad. 151 (F.B.) that the Act was intra vires. Consequently when the applications were called before

Lakshmana Rao, J., they were allowed. The learned Judge was then asked to grant a certificate u/s 205 of the Government of India Act, which he

did, whereupon the petitioner filed the petitions now before us.

The petitions came before the Court in the first instance on the 25th September, 1939, when the right of appeal to the Federal Court claimed by

the petitioner was challenged by the respondent. The questions of fact arising in the suits had not then been decided, and if decided in favour of the

petitioner, the question of the validity of the Madras Agriculturists'' Relief Act would not arise. In these circumstances the Court suggested to the

learned advocates engaged in the case that the applications might stand over until after the suits or the appeals therefrom had been decided. They

agreed to this course and the petitions were ordered to stand out of the list until decrees in the suits or appeals arising out of them had been

passed.

The trial Court delivered judgment in the suits on the 8th December, 1939. In O.S. No. 52 of 1939 a decree was passed in favour of the

petitioner for Rs. 2,987-10-0, the claim having been reduced by nearly Rs. 11,000 under the provisions of the Madras Agriculturists'' Relief Act

relating to scaling down. In O.S. No. 53 of 1939 only a decree for costs was passed, as it was found that when the provisions of the Act were

applied nothing remained due. In neither case has an appeal been filed, and in the circumstances the petitioner asks that his petitions for leave to

appeal to the Federal Court should now be decided. The respondent says that they do not lie as the decrees passed by the Subordinate Court

have not been challenged in appeal.

By reason of Section 205 (1) of the Government of India Act, 1935, an appeal lies to the Federal Court from a judgment, decree or final order

of a High Court, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Act or any Order in

Council made under it. Sub-section (2) states that where a certificate has been granted, any party in the case may appeal to the Federal Court on

the ground that the question has been wrongly decided, and on any ground on which he could have appealed without special leave to His Majesty

in Council, if no such certificate had been given, and, with the leave of the Federal Court, on any other ground. It has not been suggested that it

was improper of Lakshmana Rao, ]., to give a certificate u/s 205 (1) and the certificate having been given, the petitioner is entitled to proceed to

the Federal Court, unless there is some other provision of law with regard to procedure which prevents him.

Section 111-A of the CPC says that where a certificate has been given u/s 205 (1) of the Government of India Act, 1935, Sections 109, 110,

and 111 of the CPC shall apply in relation to appeals to the Federal Court as they apply in relation to appeals to his Majesty in Council, and

accordingly reference to His Majesty shall be construed as references to the Federal Court, but there are two provisos the effect of which is to

leave the right of appeal to the Federal Court unaffected by any of the restrictions imposed by Sections 109, 110 and 111 of the CPC with regard

to appeals to the Privy Council, when the appeal to the Federal Court is merely concerned with interpretation of the Government of India Act,

1935 or any Order in Council made thereunder. When the question is simply confined to interpretation, the right to appeal to the Federal Court

depends upon the grant of a certificate u/s 205 of the Act.

By the addition of Rule 17 there has been a corresponding amendment of Order 45 of the Code of Civil Procedure. Rule 17 states that where a

certificate has been given u/s 205 (1) of the Government of India Act, 1935, the provisions of the Order shall apply in relation to appeals to the

Federal Court as they apply in relation to appeals to His Majesty in Council, subject, however, to these provisos:

(a) Rule 3 of this Order shall have effect as if at the end of sub-rule (1) thereof there were inserted the words ''apart from any question of law as to

the interpretation of the Government of India Act, 193S, or any Order in Council made thereunder'';

(b) where the only ground of appeal stated in the petition is that any question of law as to the interpretation of the Government of India Act 1935,

or any Order in Council made thereunder has been wrongly decided, the petition need not pray for such a certificate as is mentioned in Rule 3, and

the like proceedings shall be had thereon as if such a certificate had been given except that no security shall be required for the costs of the

respondent.

Rule 2 of Order 45 requires a person who desires to appeal to His Majesty in Council to apply by petition to the Court whose decree is

complained of. Therefore a person who wishes to appeal to the Federal Court must, after he has obtained a certificate u/s 205 (1) of the

Government of India Act, 1935, file a petition in the Court which has passed the adverse decree or order and Rule 8 of Order 45 indicates that the

petition should ask for the appeal to be ''admitted''. Rule 3 says that every petition shall state the grounds of appeal and pray for a certificate, either

that, as regards amount or value and nature, the case fulfils the requirements of Section 110 or that it is otherwise a fit one for appeal, but by virtue

of proviso (a) to Rule 17 such a certificate is not required when it is a matter of appealing to the Federal Court on a question merely of

interpretation of the Government of India Act, 1935. Rule 7(1) states that where the certificate is granted, the applicant shall within the time

allowed (a) furnish security for the costs of the respondent and (b) deposit the amount required to defray the expenses of translating, transcribing,

indexing and transmitting the record. The certificate referred to here is the certificate referred to in Rule 3, but such a certificate is not required

when the appeal is only concerned with interpretation, nor is the petitioner required to furnish security for the costs of the respondent. Therefore all

that the petitioner may be called upon to do in such a case is to furnish the amount required to defray the expenses which will be incurred in

connection with the printing of the record and its transmission to the Federal Court. Rule 8 says that where the security has been furnished and the

deposit made to the satisfaction of the Court, the Court shall, (a) declare the appeal admitted, (b) give notice thereof to the respondent, (c)

transmit a copy of the record to the Federal Court and (d) provide either party who applies with one or more copies of the record on payment. As

security has not to be furnished when the appeal is to the Federal Court on a mere question of interpretation Rule 8 (a) must be read here as being

subject only to the requirement of Rule 7 with regard to the necessity for a deposit to cover the expenses of translating, transcribing, indexing and

transmitting the record.

In A.L.S.P.P.L. Subramanian Chettiar by Agent Narayanan Chettiar Vs. Muthuswami Goundan alias Avanashi Goundan, , this Court held that

an appeal lies to the Federal Court from a final order of a single Judge of a High Court when a certificate has been granted by him u/s 205 (1) of

the Government of India Act, 1935, and that the provisions of Section 111-A and Order 45, Rule 17 of the CPC do not preclude the admission of

the appeal. In Lachmeshwar Prasad v. Keshwar Lal (1941) 1 M.L.J. 49 (Supp.) : 53 L.W. 373 the Federal Court itself held that though the

scheme of Order 45 implies that till the High Court makes the order under Rule 8 it still retains a measure of control over the proceedings, such an

order is not a condition precedent to the exercise of jurisdiction by the Federal Court. This was the opinion expressed by Varadachariar, J., in

Lachmeshwar Prasad v. Keshwar Lal (1941) 1 M.L.J. 49 (Supp.) : 53 L.W. 373 and it was concurred in by Gwyer, C.J. Sulaiman, J., however,

considered that so long as Rule 8 of Order 45 remains applicable to appeals to the Federal Court an appellant cannot go to the Federal Court

without his appeal having been admitted by the High Court. In view of the majority decision it may be taken that when matters have proceeded as

far as Rule 8 a formal order of admission by the High Court is not necessary but if all the requirements of the law upto that stage have been

complied with it would be improper for the High Court not to declare the appeal admitted.

Learned Counsel for the respondent has stressed the fact that no appeals have been filed from the decrees passed by the Subordinate Court,

and it is said that the Federal Court would not entertain an appeal against an order passed in revision in connection with a preliminary issue when

there has been no appeal preferred by the aggrieved party from the decree itself. As the law now stands this Court has no jurisdiction to decide the

question. Proviso (a) to Section 111 (a) of the CPC governs the situation. It will be for the Federal Court to decide whether the question of the

validity of the Madras Agriculturists'' Relief Act is debatable when there has been no appeal from the decree in a case such as we have here. Nor

is it for this Court in the present proceedings to consider the effect of the judgment of the Federal Court in M. Lakshmana Aiyar and Another Vs.

Aiyasami Chettiar and Another, .

If all the steps which it is necessary for the appellant to take have been taken or will be taken, this Court must admit the appeal. Section 111-A

and Rule 17 of Order 45, of the CPC could very easily have been more clearly worded, particularly proviso (a) to Section 111 (a), but we have

no doubt as to the effect of the words used. Where a judgment, decree or final order involves a substantial question of law as to the interpretation

of the Act and the Court delivering the judgment or passing the decree or final order considers that a substantial question of law is involved as to

the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder, it is its clear duty, as the law now stands, to

give a certificate u/s 205. When that certificate has been given no further certificate is required and the person aggrieved is entitled to go to the

Federal Court provided that he complies with so much of Rule 7 of Order 45 as is incumbent upon him. It may be mentioned that it has not been

suggested that the order of Lakshmana Rao, J., is not a judgment or a final order. It has been accepted that so far as the proceedings here are

concerned the order of the learned Judge comes within the section and therefore this Court is not called upon to decide what will be the position if

a certificate is given in respect of a decision which could not be classified either as a judgment, decree or final order.

It follows from what has been said that in our opinion all that the appellant is required to do here is to provide funds for printing the record and

transmitting it to the Federal Court. He is willing to do this. Therefore the Office will be directed to inform the petitioner of the amount required for

these purposes and when the amounts have been paid the appeals will be declared to be admitted, and the other requirements of Rule 8 ordered.

The appellant is given three weeks within which to pay the required amount, that is three weeks from the date the amount is communicated to him.

The only other matter which requires to be dealt with is the petition for consolidation. The appellant is here under a misconception. The only

provisions in the CPC with regard to consolidation are those contained in Rule 4 of Order 45. In this case there is no question of pecuniary

valuation and that rule obviously does not apply. Therefore, the Court is not in a position to make any order of consolidation. There will have to be

separate appeals and it will be for the Federal Court to say whether they should be heard together.

The costs of these applications will be made costs in the appeals.