B.D. Gupta, J. - (1.) THIS is an application for a certificate of fitness for appeal to the Supreme Court Under Article 133 of the Constitution. In the application all the sub -clauses of Clause (1), namely (a), (b) and (c) have been mentioned; but learned Counsel for the Applicant has confined his claim to sub CL (b). After obtaining findings in regard to valuation of the property from the court below and after hearing learned Counsel at some length we have arrived at the conclusion that the certificate prayed for should be granted.
(2.) THE Plaintiff, who has filed this application, instituted, in 1964, Suit No. 14 of 1964 in the court of the Civil kludge, Etawah for redemption of a mortgage executed by his predecessor -in -interest in favour of the predecessor -in -interest of the Defendants, who are the opposite parties in this petition. The suit was contested but the trial court decreed the suit. An appeal to the District Judge having failed a Second Appeal was filed in this Court, which was referred for decision by a Division Bench. By its judgment dated the 12th of July, 1968, the Division Bench allowed the appeal, set aside the decree of the court below and dismissed the suit. Thereafter the present application Under Article 133 of the Constitution was filed on 1 -8 -1968. On the 27th of February, 1969, after hearing learned Counsel in support of the application, we passed an order directing the court below to record a finding on the following issues - - What was the value of the house on or about the 20th of August, 1964, on which date Suit No. 14 of 1964 was filed in the court of Civil Judge Etawah? This order was passed as, during the course of the hearing which preceded the order, the learned Counsel stated that there was no controversy that the valuation of the suit regarding which the parties were in dispute must, for the purpose of fixing valuation, be with reference to the date on which the suit was filed, that is, the 20th of August, 1964. In consequence of the above order, the court below recorded a finding to the effect that the valuation of the house on the date on which the suit was filed was Rs. 17,000. Thereafter, when the matter came up before us again on the 24th of February, 1970, learned Counsel for the Petitioner stated that he would like to press his case for a certificate of fitness under Sub -clause (b) of Clause (1) of Article 133 and that it will be necessary for this Court to obtain a finding also in regard to the valuation of the house on the date ion which the petition was presented before this Court, viz. 1 -8 -1968. Learned Counsel confessed that he had committed an error on the previous date in conceding that the date relevant in regard to the valuation of the house was only the date of the filing of the suit. We found substance in what learned Counsel stated, with the result that by our order dated 25 -2 -1970 we remitted another issue to the court below for recording its finding. This issue ran as follows: What was the value of the house on or about the 1st of August, 1968? The finding has now been received from the court below according to which the value of the property in suit on 1 -8 -1968 was more than Rs. 20,000. As regards the valuation of the house on the date of the suit learned Counsel for the parties did not press any objection but agreed that the court may proceed on the footing that that valuation was correct. As regards the valuation of the house on the date this petition was presented, objections were filed on behalf of Defendant opposite parties and it has been urged that the valuation of the house on the date of presentation of this petition was below Rs. 20.000. A perusal of the finding recorded by the learned Civil Judge in regard to the valuation of the house on the date of the presentation of this petition makes it clear that, apart from such oral evidence as had been led, it is founded on two Exemplars filed on behalf of the, Petitioner. These consisted of two sale deeds of properties in the same locality sold in December, 1966 and September, 1069. According to the Exemplar of September, 1969, the valuation of the property would be very high but since this Exemplar related to a sale at a time several months after the relevant date we have relied upon it only as showing uptrend in the rise of the value of the property in that locality. Even if the valuation furnished by the Exemplar of December, 1966, alone were to be taken into consideration there can be no doubt that the value of the property in question would be far in excess of Rs. 20,000. No Exemplars appear to have been filed on behalf, of Defendant -opposite parties. After considering the objections raised on their behalf we are satisfied that no just exception can be taken to the finding recorded by the court below that on the date on which the petition before us was presented to this Court the value of the property was in excess of Rs. 20,000 though, as stated earlier, the value of the said property on the date of suit was below Rs. 20,000.
(3.) THE next question which requires to be considered is whether the present case will fall under Sub -clause (a) of Clause (1), or Sub -clause (b) of Clause (1) of Article 133 of the Constitution. Learned Counsel for the Petitioner has referred to a decision of the Supreme Court in the case of Kunju Kesavan v. M.M. Philip : AIR 1964 SC 164 in support of the proposition that in the present case Sub -clause (b) should be applied and not Sub -clause (a). It was observed in the aforesaid decision as follows: An appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the Court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order, involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines valuation for the purposes of appeal. A Plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation. But in those cases in which the plaint is not required to be valued in this way, a question may arise as to the proper value of the claim both in the court of first instance and on appeal to this Court the word 'indirectly', in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint.;