Decided on January 28,1953

State Of Madras And Anr. Appellant


Subba Rao, J. - (1.) THIS is an application for leave to appeal to the Supreme Court against our judgment in C. M. P. No. 8302 of 1950. One of the questions raised in the petition was whether Section 20 of Act 26 of 1948 applied to a post -settlement minor inam. We held the section applied. The Government Pleader argued that our decision would affect innumerable post -settlement minor inams which have been recently notified under the Act. On that ground it is pressed that this is a fit case for appeal to the Supreme Court. We have no doubt that the question raised is of public importance and therefore we should grant leave. But learned counsel for the respondent, while conceding that the point raised is of sufficient importance, contended that if unconditional leave is granted his client's interest would suffer. He says that the value of the subject -matter of the appeal is only about Rs. 3,000, and that if his client is compelled to go to the Supreme Court he may not be in a position to conduct the litigation and take the risk of the costs of the appeal. In similar circumstances a Full Bench of this Court made some pertinent remarks which we may usefully follow. In - - 'Sethupathi v. Thiruneelakantan',, AIR 1923 Mad 232 (A), an application was made for leave to prefer an appeal to His Majesty in Council under Section 109(c), Civil P. C. corresponding to Article 133(1) of the Constitution. There, as in this case, the value of the subject -matter was far below Rs. 10,000. At pages 233 -234 the Chief Justice made the following remarks: "What is the duty of the Court if it thinks that the case is a fit one for consideration by His Majesty in Council but that it would not be right to call upon one party whose financial interest in the matter is small to incur the risk of the costs of the appeal? Assuming the decision in - - 'Clarke v. Brajendra Kishore', : 13 C W N 1127 (B), is right and in my judgment in view of the fact that that case went before the Privy Council and special leave to appeal was granted and it was not then suggested that the Calcutta High Court could have itself imposed any condition, it is not possible for this court to hold otherwise, the only course open to us is to refuse leave and to leave the appellant, if so advised, to apply to the Privy Council for special leave. "During the hearing of these applications we asked the appellant whether he would be prepared to agree to a condition that he should be liable for the costs of the defendants as between solicitor and client in any event. This by his counsel he definitely refused.....I think in such cases, the only safe course is to refuse leave stating, if it be the case, that the point in issue appears to be one of general importance but not of sufficient importance to the proposed respondent to warrant this court in putting him to the expense of an appeal to the highest tribunal." We asked the Government Pleader whether his clients would be willing to a condition that they should be liable for the costs of the respondent in any event. It is represented to us today that they are willing to do so. This application is therefore granted, subject to the condition that the respondent will get his taxed costs incurred in the Supreme Court in any event from the petitioners.;

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