SETH BHAWARLAL Vs. LACHMANDAS

JUDGEMENT

(1.) THIS is a petition by the defendants under Section 110, Civil P.C., for leave to appeal to His Majesty in Council against the decree passed by this Court in First Appeal No. 49 of 1926, directing the specific enforcement of the contract which the defendants had made to reconvey and deliver into plaintiff's possession certain property, and also payment of monetary compensation. The first Court had refused to grant the relief of specific performance of the contract, and had granted him the alternative monetary relief by way of damages. The plaintiff came up in appeal to this Court, and succeeded in obtaining the appropriate decree. The defendant-appellants now urge that the case fulfils the requirements of Section 110, Civil P.C., and that they should be granted the necessary certificate. The plaintiff on the other hand, contends that it does not, and that the certificate should be refused. Therefore the question to be considered is whether this is a case which fulfils the requirements of either Clause 1 or Clause 2, Section 110 of the Code. As the decision of this Court is not an affirming decision we need not consider the applicability of Clause 3 of the said section.

(2.) IT has to be borne in mind that, whereas, Clause 1 of the said section makes reference to the value of the ' subject-matter of the suit ' and also of the 'subject-matter in dispute on appeal to His Majesty in Council,' the second looks only to the value of property to or respecting which some claim or question is involved in the decree appealed against. It will thus be seen that in a case coming under Clause (1), Section 110, Civil P.C. the conjunction ' and ' is very important. Both the values must be looked to. The word ' and ' cannot be read as ' or ': cf. Molichand v. Gunga Pershad [1902] 24 All. 174. So that, besides the value of the subject-matter of the suit in the Court of first instance at the date of the institution of the suit, the value of the subjectmatter in dispute on appeal to His Majesty in Council at the date of the decree from which the appeal to His Majesty in Council is to be made must, as held in Gooroopersad v. Juygut Chunder [1860] 8 M.I.A. 166 and Sahu Ram Kumar v. Muhammad Yakub [1920] 42 All. 445, be taken into consideration. On the other hand, in a case coming under Clause (2) of the said section the value of the property referred to in it must be determined with reference to the date of the decree from which the appeal to His Majesty in Council is to be made: cf. Surendra Nath Roy v. Dwarka Nath Chakravarti [1917] 44 Cal. 119 and Raoji Bhaikaji v. Laxmibai [1920] 44 Bom. 104. Clause 2 which is the alternative to the whole of the requirements of Clause 1 does not take into account the value of the subjectmatter of the suit in the Court, of first instance, as it existed at the date of the suit; the same is necessary only for the purposes of Clause 1. Moreover, the words "subject-matter" and "property" used in the two clauses cannot, for obvious reasons, be treated as synonymous terms referring to the property in dispute in the suit or appeal. The absence of the words "in suit" or "in dispute" after the word "property" in Clause 1 suggests the inference that the word "property" is used there with a view to indicate property not in suit or dispute, which may be, directly or indirectly, involved: cf. Udoychand Pannalal v. Guzdar & Co. A.I.R. 1925 P.C. 159.

(3.) A reference to para. 1 of the judgment of the first Court will show how the plaintiff's claim was laid in the plaint. He wanted a decree directing the defendants to specifically perform the contract of sale by executing a sale-deed and delivering possession of the land and buildings to him and also to pay him Rs.2,930. The following account will show how this amount was arrived at: Value of entire concern Rs. 52,000-0-0 _____________ Deduct value of entire machinery " 44,111-0-0 and value of moveables " 1,819-0-0 Total Rs. 45,930-0-0 The net value of land and buildings Rs. 6,070-0-0 Price of machinery and moveables payable to plaintiff for his ?th share Rs. 11,482-8-0 Price payable by plaintiff to defendant for 3/4th share of land and buildings " 4,552-8-0 ___________ Rs. 6,930-0-0- Deduct earnest money received " 4,000-0-0 ___________ Balance Rs. 2,930-0 0