Surendra Nath Roy An... v. Dwarkanath Chuckerbu..., Calcutta High Court, Judgment, Law, casemine.com

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Case Number

P.C App. No. 18 of 1915

Attorney(S)

Babus Dwarkanath Chuckerbutty, Kalikinkar Chuckerbutty and Him Lal Sanyal for the Petitioner.
Babu Jyotish Chandra Hazra for the Opposite Party.

Judges

Sanderson, C.J
Mookerjee, J.

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Smart Summary

Factual and Procedural Background

Plaintiffs brought an action for ejectment against the Defendants, asserting that the Defendants were tenants-at-will. The Defendants countered that they held a permanent tenancy granted by the Plaintiffs' predecessor to the Defendants' predecessor. The Munsif (trial court) found for the Plaintiffs, concluding that the tenancy was terminable on notice. On appeal the District Judge accepted the Munsif's findings of fact but drew the opposite legal conclusion, holding the tenancy to be permanent and giving judgment for the Defendants.

The Plaintiffs applied to a Division Bench of the High Court for permission to admit an appeal under Order XLI, rule 11 of the Code of Civil Procedure; that application was rejected on 14 December 1914 (the Division Bench's order operating as an affirmance of the District Judge's decree). The present application is by the Plaintiffs (Petitioners) for leave to appeal to His Majesty in Council against the High Court's order dismissing their application under Order XLI, rule 11.

Procedural timeline details appearing in the opinion: suit instituted in 1912; decree by Court of first instance dated 7 July 1913; appeal dismissed by District Judge on 18 June 1914; this Court dismissed the second appeal under Or. XLI, r.11 on 15 December 1914. A valuation report dated January 1916 stated the property value as Rs. 11,400; evidentiary materials relied on by the trial court included a valuer's opinion valuing the land at Rs. 300 per cotta and conveyances dated 4 and 9 April 1914.

Legal Issues Presented

Whether leave to appeal to His Majesty in Council should be granted under section 110 of the Code of Civil Procedure — specifically, whether the decree under appeal involves directly or indirectly property of the value of Rs. 10,000 or upwards (and, relatedly, what date is to be taken for valuation).
Whether the appeal involves a substantial question of law — namely, whether the tenancy held by the Defendants was permanent or terminable on notice (a question characterized as mixed fact and law because the District Judge accepted the facts but drew a different legal inference than the trial court).

Arguments of the Parties

Arguments advanced by the Vakil for the Opposite Party (Defendants)

Under section 110, the subject-matter of the suit must have been of the value of Rs. 10,000 at the date of institution of the suit and also at the date of the decree from which the appeal is desired.
Although a valuation report dated January 1916 showed the property to be worth Rs. 11,400, that does not establish its value at the relevant earlier dates (in particular December 1914).
Because the Plaintiff brought the suit in the Munsif's Court and paid court fees based on a small annual rental (Rs. 4-4), the Plaintiff should be precluded from now asserting that the property is worth Rs. 10,000 or more.

Arguments advanced by the Petitioners (Plaintiffs)

The Petitioners rely on the second paragraph of section 110 (the decree or final order involves a claim or question respecting property of the value of Rs. 10,000 or upwards) rather than the first paragraph requiring value at institution of suit.
They relied on a valuation report (January 1916) stating the property's worth as Rs. 11,400 and on the trial court's valuer evidence that valued the land at Rs. 300 per cotta with conveyances dated 4 and 9 April 1914 supporting that valuation, to show the value exceeded Rs. 10,000 as at December 1914.
The Plaintiff is not barred from asserting a higher value despite having paid small court fees in the Munsif's Court; any such earlier statement could be rebutted by subsequent evidence that the property was worth more than Rs. 10,000.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Allan v. Pratt	Supports the principle that the value for determining the right of appeal is to be measured by the effect of the judgment on the prejudiced party — i.e., the value of the judgment (date of judgment is the relevant point).	Used by Mookerjee, J. to support the conclusion that valuation under sec. 110 must be determined with reference to the date of the decree under appeal (December 1914).
Macfarlane v. Leclaire	Contains the observation (quoted approvingly) that the judgment is to be looked at as it affects the interests of the party prejudiced by it; that this is the right principle for measuring value.	Quoted by the Judicial Committee in Allan v. Pratt and relied upon by Mookerjee, J. as authority for taking the value as at the date of the judgment under appeal.
Mohideen v. Pitchey	Holds that mesne profits up to the date of the decree are to be taken into account when determining value for purposes of appeal.	Invoked by Mookerjee, J. to illustrate the established principle that interests accruing up to the date of the decree are relevant in assessing the value at that date.
Dalgleish v. Damodar Narain	Applied the same principle (consider value as of the judgment/decree date) as had been stated by the Judicial Committee.	Referred to by Mookerjee, J. as a domestic instance where the same principle (value at date of decree) was followed.
Bank of New South Wales v. Owston	Part of a group of authorities holding that interest up to the date of judgment is to be taken into account for assessing whether the appealable value has been reached.	Grouped by Mookerjee, J. with related decisions to support that amounts accruing until the decree (such as interest) are to be included in the valuation at the decree date.
Gooroo Persad v. Juggut Chunder	Same principle regarding inclusion of interest up to the date of judgment for valuation purposes.	Relied on by Mookerjee, J. as part of the line of authority confirming the correct temporal point for valuation under sec. 110.
Moti Chand v. Ganga Parshad	Same principle regarding interest up to date of judgment being relevant to valuation.	Used to corroborate the position that the value must be measured as at the date of the decree under appeal.
Nand Kishore v. Ram Gulam	Referenced in connection with the authorities that include interest up to judgment date in valuation.	Cited by Mookerjee, J. in the same context as the other Judicial Committee decisions to support valuation at judgment date.
Maharam v. Telamuddin	Discusses and reviews a long line of cases on the nature of questions that are mixed questions of fact and law.	Relied on by Mookerjee, J. to show that when findings of fact are accepted but different inferences of law are drawn, the issue is a mixed question involving law; used to support that the present dispute raises a substantial question of law.
Raja Makund Deb v. Gopinath	Also reviews authorities concerning mixed questions of fact and law.	Invoked alongside Maharam v. Telamuddin to justify treating the tenancy question (permanent vs. terminable) as involving a substantial question of law.

Court's Reasoning and Analysis

The opinion contains two judgments (Sanderson, C.J., and Mookerjee, J.) which reach the same result by related lines of reasoning.

Sanderson, C.J.

Identified the principal threshold under section 110: whether the case falls within the first paragraph (value at date of institution and on appeal) or the second paragraph (decree/final order involves property of value Rs. 10,000 or upwards).
Observed that there was no evidence as to value at the date of institution of the suit (potential difficulty under the first paragraph), but concluded the case fits the second paragraph because the decree to be appealed (the High Court's December 1914 order) directly or indirectly involved property of the requisite value.
Considered the January 1916 valuation report stating Rs. 11,400. Noting the valuer's testimony (Rs. 300 per cotta) and reliance on conveyances dated April 1914, the Chief Justice held that the valuer's figure could be taken as reflecting the value in 1914. Thus the property exceeded Rs. 10,000 in December 1914.
Addressed the Opposite Party's contention that the Plaintiff's earlier payment of small court fees in the Munsif's Court amounted to an admission precluding assertion of a higher value. The Chief Justice rejected the view that the Plaintiff is debarred: at most such a payment was an admission that could be rebutted by subsequent evidence.
Concluded that the application for leave should be allowed and that leave to appeal to His Majesty in Council should be granted.

Mookerjee, J.

Agreed that the Petitioners satisfied section 110, relying on the second paragraph (decree involves property of the requisite value) rather than the first paragraph due to lack of record materials about value at trial.
Addressed the temporal question: with reference to which date should the property value be ascertained for sec. 110. He concluded the proper reference date is the date of the decree under appeal (the High Court's 15 December 1914 order).
Supported this principle by reference to the Judicial Committee's decision in Allan v. Pratt (and the quotation from Lord Chelmsford in Macfarlane v. Leclaire), and cited other decisions (Mohideen v. Pitchey and Dalgleish v. Damodar Narain) showing that amounts accruing up to the date of decree (e.g., mesne profits, interest) are to be included when assessing value for appeal purposes.
Applied that principle to the facts: the trial court's finding relied on 1914 transactions and a valuer's opinion of Rs. 300 per cotta; accordingly the trial court's report supports that the property's value was above Rs. 10,000 in 1914.
Considered whether the decree appealed against involved a substantial question of law. He explained that the District Judge accepted the trial court's factual findings but drew a contrary legal conclusion as to the nature of the tenancy — a classic mixed question of fact and law. Relying on authorities (Maharam v. Telamuddin and Raja Makund Deb v. Gopinath), he treated the issue as raising a substantial question of law.
Held that the statutory requirements (both nature of question and value) were fulfilled and that a certificate should issue; concluded by granting leave.

Holding and Implications

Holding: Leave to appeal to His Majesty in Council is granted. Both Sanderson, C.J. and Mookerjee, J. agreed that the petitioners satisfied section 110 (the decree under appeal involved property of the value of Rs. 10,000 or upwards as at the date of the decree) and that the appeal raised a substantial question of law (the correct legal inference from agreed facts about the nature of the tenancy).

Implications:

The direct practical effect is that the Petitioners are permitted to pursue an appeal to His Majesty in Council against the High Court's order dismissing their application under Order XLI, rule 11 (the Court ordered that a certificate issue and leave is granted).
The opinion applies and confirms existing principles about measuring value for the right of appeal (value to be taken as at the date of the decree under appeal and including relevant amounts accruing to that date). The Court relied on established authorities for those principles; the opinion does not purport to create a new precedent beyond applying those authorities to the facts before it.

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Surendra Nath Roy And Ors. Petitioners, To England v. Dwarkanath Chuckerbutty And Ors. Opposite Party, S To England.

Sanderson, C.J:— This is an application by the Plaintiffs for leave to appeal to His Majesty in Council. An action was brought by the Plaintiffs against the Defendants claiming ejectment from certain property. The Plaintiffs allege that the Defendants are tenants-at-will only, while the Defendants allege that they had a permanent tenancy which had been granted by the Plaintiffs' predecessor to the Defendants' predecessor, and the Munsif before whom the action was brought gave judgment for the Plaintiffs and came to the conclusion that the tenancy was a terminable one on notice. Then there was an appeal to the District Judge who accepted the findings of fact arrived at by the Munsif but came to the conclusion that the tenancy was a permanent one and gave judgment for the Defendants. Thereupon the Plaintiffs applied to a Division Bench of this Court for permission that the appeal should be admitted under Or. XLI, r. 11 of the Code of Civil Procedure. That application was rejected on the 14th December, 1914. The Applicant now asks this Court for leave to appeal to His Majesty in Council against the order of this Court dismissing his application under Or. XLI, r. 11.

The first question raised by the Vakil for the Opposite Party is under sec. 110. He says that under that section the subject-matter of the suit must be of the value of Rs. 10,000 at the date of the institution of the suit, and also that it must be of that value at the date of the decree from which the appeal to His Majesty in Council is desired. Now I think that without deciding whether this case does come within the first paragraph of sec. 110 of the Code of Civil Procedure as to which there may be some difficulty inasmuch as there was no evidence as to the value of the subject-matter while this case was in the Court of first instance, I think this matter does come within the second paragraph of sec. 110 of the Code of Civil Procedure seeing which the decree final order involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000. The decree or final order must be the decree of final order from which the appeal is made, that is, the decree of the High Court of December 1914, and when one remembers that the question which it is desired to argue is this, whether upon certain given facts or data the tenancy is to be regarded as one at will or one of a permanent nature, it seems to me that this is a matter in which a substantial question of law is involved.

The other question which I have to consider is whether the property is of the value of Rs. 10,000 or upwards. We have the report which was made at the instance of the High Court dated January 1916 which is to the effect that the property was worth Rs. 11,400. The learned Vakil says that this is all very well. The property may have been worth Rs. 11,000 in 1916 but it does not follow that it was worth that amount at the date of the institution of the suit. I do not think myself that is the material date, I think the material date is the date of the decree from which the appeal to the High Court is to be made and that date is admittedly December 1914. It may be said that even if that was the value of the property in January 1916, it does not follow that the value was the same in December 1914 inasmuch as according to the report the property has gone up by leaps and bounds within the last few years. When we look at the report especially at the materials upon which the Munsif made his report, we find from the evidence given by the valuer, that the property was valued at Rs. 300 a cotta. He corroborated his opinion by referring to the conveyances of the land in the immediate neighbourhood which are dated the 4th and 9th April, 1914, and there seems to have been no other transaction subsequent to the dates on which the valuer based his opinion and consequently I think that the value arrived by Mr. Warwick at Rs. 300 per cotta may be taken to have been the value of the property in 1914. Therefore the value of the property was above the requisite amount in December 1914, and for this reason the case comes within the second paragraph of sec. 110 of the Code of Civil Procedure.

The property was at the date of the decree more than Rs. 10,000 but the learned Vakil went on to argue that the Plaintiff could not now assert that the property was worth Rs. 10,000 inasmuch as he brought his suit in the Munsif's Court and he paid Court fees on the annual rental of Rs. 4-4.

Speaking for myself I do not think that the Plaintiff is debarred from raising the point that the property which is in dispute is in fact of the value of Rs. 11,400. It may very well be that at he time the instituted the suit he thought if he could, according to the Rules of the Court, bring his case within the jurisdiction of the Munsif, he would be well advised to do so. The point taken by the learned Vakil may have been a good one, for objecting to the jurisdiction of Munsif in the Court of first instance. At the most, it could only be taken as an admission and it was one that might be rebutted by subsequent evidence that it was worth more than Rs. 10,000.

For these reasons I think the application should be allowed and leave to appeal to His Majesty in Council granted.

Mookerjee, J.:— I agree that the Petitioners have established that their application for leave to appeal to His Majesty in Council fulfils the requirements of sec. 110 of the Code of Civil Procedure. The Petitioners rely upon the second paragraph of the section which deals with cases where the decree involves, directly or indirectly, some claim or question to or respecting property of the amount or value of Rs. 10,000. They do not rely upon the first clause, which refers to cases where the amount or value of the subject-matter of the suit in the Court of first instance is Rs. 10,000 or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is also the same sum or upwards. They cannot take advantage of the first clause, inasmuch as there are no materials on the record to show that the value of the subject-matter of the suit in the Court of first instance, or in the Court of Appeal, was of the prescribed amount. The trial Court, however, has reported that the value of the property affected by the decree is over Rs. 10,000. The finding of that Court is somewhat loosely expressed and it may be plausibly contended that the value as determined by that Court refers to the value in 1916. But the evidence on which the finding is based relates to transactions which took place in 1914, and consequently, we may legitimately hold that the trial Court has found that the value of the property affected by the decree was above Rs. 10,000 in 1914. The suit, which was instituted in 1912, was decreed by the Court of first instance on the 7th July, 1913. On appeal to the District Judge, the suit was dismissed by him on the 18th June, 1914. A second appeal to this Court was dismissed under Or. XLI, r. 11, on the 15th December, 1914. This dismissal operates in law, as an affirmance of the decree of the District Judge. The Petitioners now pray for leave to appeal to His Majesty in Council against the decree of this Court dated the 15th December, 1914, and the question consequently arises, with reference to what point of time is the value of the property affected by the decree to be determined for the purposes of sec. 110. In my opinion, it is plain that when sec. 110 provides that the decree must involve, directly or indirectly, some claim or question to or respecting property of the value of Rs. 10,000 or upwards, the intention of the legislature is that the value is to be determined with reference to the date of the decree under appeal. This view is supported by the decision of the Judicial Committee in Allan v. Pratt(1), where the Earl of Selborne quotes with approval the observation of Lord Chelmsford in Macfarlane v. Leclaire(2) “that the judgment is to be looked at as it affects the interests of the party who is prejudiced by it and who seeks to relieve himself from it by appeal; if there is to be a limit of value at all, that seems evidently the right principle on which to measure it. The proper measure of value for determining the question of the right of appeal, is the value of the judgment”. It is on this principle that the Judicial Committee, in Mohideen v. Pitchey(3), held that in determining the value for the purposes of an appeal, the mesne profits up to the date of the decree are to be taken into account, and this view was followed by this Court in the case of Dalgleish v. Damodar Narain(4). The same principle was adopted by the Judicial Committee, when in the cases of Bank of New South Wales v. Owston(5), Gooroo Persad v. Juggut Chunder(6) and Moti Chand v. Ganga Parshad(7), they ruled that interest up to the date of judgment is to be taken into account in determining whether the appealable value has been reached or not [Nand Kishore v. Ram Gulam(8)]. In my opinion, it is perfectly plain that under sec. 110, the point of time to be considered is the date of the judgment under appeal. If this principle is adopted, there is no room for controversy that in the case before us, the decree against which leave to appeal is sought, does affect property of the value of Rs. 10,000 and upwards.

The only other question is, whether the decree appealed against which is in affirmance of the decree of the Court immediately below, involves a substantial question of law. As already explained by the Chief Justice, the question in controversy relates to the nature of the tenancy held by the Defendants under the Plaintiffs; was that a permanent tenancy or a tenancy terminable by notice to quit. The District Judge has in effect accepted the findings of the Court of first instance, but he has drawn from those findings a conclusion precisely contrary to that drawn by the trial Court. The question thus is, what inference may legitimately be drawn from the facts found, and this clearly is a mixed question of fact and law, as appears from a long line of cases reviewed in Maharam v. Telamuddin(9) and Raja Makund Deb v. Gopinath(10). In my opinion, there is no room for doubt that the appeal does involve a substantial question of law, and that a certificate must consequently issue that the case fulfill the statutory requirements both as regards nature and value.

N.G

Leave granted.

Surendra Nath Roy An... v. Dwarkanath Chuckerbu...