Decided on October 15,1963



Kumarayya, J - (1.) This is an application under Articles 132 and 133 of the Constitution of India read with Rules 2 and 3 of Order 45 and Ss. 109 and 110 of the Civil Procedure Code, for leave to appeal to the Supreme Court against the judgment of this Court in A. S. No. 230 of 1959 dt. 13-10-1962.
(2.) The petitioner was one of the lessees from the zamindar of Madgole and Pachipenta, for collecting adda leaves in specified areas for a period of two years commencing from 1-7-53 to 30-6-1955. He sub-leased the same to M/s. Rajagopala Pillai and Co., for an annual lease amount of Rs. 10,000.00 Several months after the expiry of the first year, dispute arose between the parties as to whether the agreement as entered into was for one year or full two years. The petitioner contended that the lease was only for one year, even though the respondent continued in possession for a longer period till the petitioner sent his agent, Subbarao, for collection of the leaves. He further contended that the respondent in addition to kist amount was liable to pay him certain taxes and also expenses incurred in litigation, but in spite of notice, he failed to pay the same. As a result, he brought a suit, O. S. No. 50/55 for a sum of Rs.due from the respondent. The case of the respondent, on the other hand, was that the sub-lease was for a period of two years, that apart from the kist amount, no other amount was agreed to be paid to the petitioner, that the petitioner was in breach of the contract when he started collecting through his agent the adda leaves in the peak period of the season from 13-4-1955 to 30-6-1955, as a result of which the respondent suffered damages in the shape of loss of profits to the tune of Rs. 34,500.00 His case is that had the sub-lease been allowed to function properly, he would have enjoyed the said profits after paying the balance of kist amount, which was Rs. 8,500.00 On this basis, he brought O. S. No. 11 of 1956 for recovery of a sum of Rs. 26,682-8-0, inclusive of interest by way of damages. These two suits were, with the consent of the parties, tried together by the Subordinate Judge of Visakhapatnam and the learned Subordinate Judge by a common judgment, dismissed the suit (O. S. No. 50/55) brought by the petitioner and decreed the suit (O. S. No. 11/56) of the respondent to the extent of Rs. 23,000.00 with interest thereon from 1-7-55 till the date of realisation at 6% per annum and proportionate costs. Against these judgments and decree, the petitioner preferred separate appeals, A. S. Nos. 229 and 230 of 1959, which wee heard and decided by us by a common judgment on 13-10-1962. A. S. No. 229/59 (preferred against O. S. No. 50/55) was dismissed and A. S. No. 230/59 (preferred against O. S. No. 11/56) was partly allowed and the decree of the Court below which was for a sum of Rs. 23,000.00 was reduced to Rs. 13, 500.00 and interest was granted from the date of the suit till date of satisfaction of the decree at the rate of 6% p. a. The reduction in the decretal amount was consequent on the finding that the gross profits realised during the period in question were only to the tune of Rs. 22,000.00 and not Rs. 31,500.00 as found by the trial Court. The petitioner now requests for leave to appeal to the Supreme Court against the judgment rendered in A. S. No. 230/59.
(3.) The judgment passed by this Court is not one of affirmance but of variance. The variation, of course, is to the benefit of the petitioner. But the petitioner will still be entitled to a certificate, if his case satisfies the valuation test prescribed by the Constitution. The petitioner has in his application, no doubt, referred to Art. 132 also. But Art. 132 has no application as the case does not involve any substantial question of law as to the interpretation of the Constitution. There remain Art. 133 and S. 110 C. P. C. Even according to the learned counsel, the case does not come under sub-cl. (c), corresponding to para 1 of S. 110, C. P. c. is concerned with the amount or the value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal which must be not less than Rs. 20,000.00 and cl. (b) of Art. 133 (1) is concerned with the effect of the judgment, decree or final order on any claim or question respecting property of Rs. 20,000.00 whether direct or indirect. Article 133 (1) (b) obviously enough had no application to this case. The only point then that fails for determination is whether the case satisfies the test of valuation prescribed in Art. 133 (1) (a).;

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