- (1.) THESE two applications seek certificate of fitness for leave to appeal to the Supreme Court under Art. 133 of the Constitution against the decree and judgment of this Court dated 7th December, 1965, disposing of two cross appeals Nos. 8 and 10 of 1957, arising out of an original suit No. 26 of 1952, for damages.
(2.) THE relevant facts are these: THE plaintiff-respondent was arrested on a warrant issued by the then Government of Jaipur State under sec 3 of the Jaipur Public Security Ordinance, 1947, on 9th June, 1948, and was kept in detention in the Central Jail, Jaipur City, till 18th of July, 1948 when he was released in pursuance of an order of the High Court of Jaipur dated 12th July, 1948, passed on habeas corpus petition filed by him. Alleging that his arrest and detention were wrongful and illegal, without any reasonable cause and were mala fide, the plaintiff instituted a suit for damages amounting to Rs. 2,03,000/- in tort against the then State of Jaipur and six cabinet ministers, on 22nd March, 1949, in the Court of District Judge, Jaipur. On 7th April, 1949 the various covenanting States of Rajasthan were integrated and the Jaipur State merged with the Rajasthan. THE State of Rajasthan was substituted for the State of Jaipur. THE suit was ultimately tried by the Senior Civil Judge, Jaipur City. The defendants opposed the suit. The trial Judge, after framing issues and recording evidence, partly decreed the plaintiff's suit to the extent of Rs. 50,000/- with proportionate costs, against the defendant State. The suit against the other defendant No. 2 to 7 was dismissed but these defendants were left to bear their own costs. Aggrieved by the decree of the trial court, the state filed an appeal No. 8 of 1957. The plaintiff also filed an appeal No. 10 of 1957 seeking two-fold reliefs - (1) for enhancing the amount of decree; (2) for passing personal decrees against defendants Nos. 2 to 7. During the course of appeal, defendant No. 6 Th. Kushal Singh died and the plaintiff withdrew the suit against defendant No 5. This Court by its judgment dated 7th December, 1965, dismissed the state appeal. It also dismissed the plaintiff's appeal against the State ( defendant No. 1 ) but accepted the appeal against defendants Nos. 2, 3, 4 and 7 and decreed the suit against them with proportionate costs to the extent of Rs. 47,000/ -. The defendants Nos. 2, 3, 4 and 7 took no steps to apply for leave to appeal against the decree of this court but the State expressing its desire to file appeal on its own behalf and on behalf of defendants Nos. 2, 3 4 and 7, filed two identical applications in the two appeal-files, praying for certificate of fitness for leave to appeal to the Supreme Court. Both these applications are identical. In these two applications the State (which shall hereinafter be referred to as the petitioner) broadly stated the facts and generally put forward the grounds for not holding the State liable for damages in tort in such cases. The applications do not make note of the differences in the operative portions of the judgment relating to the two appeals and no specific reference was made to the liability of the other defendants. The petitioner also did not indicate the particular clause of Art. 133 of the Constitution in terms of which the certificate was sought. At the time of hearing the Advocate General appearing for the State contended that the State undertook defence on behalf of the other defendants and was, therefore, aggrieved by the variation of the decree by this Court extending liability against the other defendants. In these circumstances, the State is entitled to obtain a certificate as a matter of right under Art. 133 (l) (a) having regard to the valuation of the subject matter in dispute between the parties. Repudiating the contention of the State, the counsel for the respondent contended that the other defendants having not chosen to apply for certificate for leave to appeal, the State cannot appeal on behalf of the other defendants and cannot submit an application for leave to appeal. The learned counsel for the petitioner placed reliance upon O. 27, r. 8, Civil Procedure Code. We have carefully considered the provisions of O. 27 r. 8, Civil P. C. and have come to the conclusion that the petitioner's contention cannot be accepted. O. 27 r. 8 merely provides that on Government's undertaking the defence of a suit against a Public Officer the Government Pleader upon being furnished with authority to appear and answer the plaint can apply to the Court intimating of his authorisation to defend the Public officers and of his appearance on their behalf and the Court is required in such cases to cause a note of his authorisation to be entered in the register of civil suits. These provisions cannot be taken to imply that the Public Officers cease to be defendants and that the State is substituted as a defendant for them. Provisions of O. 27 r. 8, Civil P. G. being in derogation of the ordinary law should be limited to the purposes expressly or impliedly indicated and cannot be extended beyond those purposes. In our opinion, this provision only enables the Government Pleader to appear and defend Public Officers but this provision cannot enable State to file an appeal on behalf of the Public Officers. It may also be pointed out that the right to appeal is created by statute and can be exercised only by the party to whom it is given. We have no doubt that the State cannot file appeal on behalf of the other defendants against the decree of this Court making them liable for the payment of damages to the plaintiff. Even so, it was argued that this Court has varied the decree of the trial court in some respects and the State is entitled to avail of this variation for a certificate to appeal to the Supreme Court. It is contended that the variation need not be in the decree against the appellant. If the variation is in the decree against the other defendants then too the appellant can take advantage of it and file an appeal under Art. 133 (1) (a ). Reliance was placed upon the decision of the Supreme Court in Tirumalachetti Rajaram vs. Tirumalachetti Radhakrishnayya Chetty (1 ). In that case, the plaintiff filed a suit claiming half share in the properties which once belonged to the joint family consisting of himself and his father. The plaintiff also challenged alienations effected by his father as well as the sales held in execution proceedings against his father as not binding on him and contended that he was entitled to half share to those properties also. The trial court rejected his contention that the alienations does not bind him and upheld all the alienations and so dismissed the suit. On appeal, the High Court of Madras reversed the trial court's decree in respect of some alienations and held that those alienations were not binding upon the appellant's share. The High Court passed a preliminary decree for partition. The appellant then appealed to the High Court for a certificate under Art. 133 of the Constitution. This application was rejected on the ground that the decree sought to be appealed from was one of affirmance and there was no substantial question of law raised by the proposed appeal. The plaintiff obtained special leave from the Supreme Court and the question posed by the Supreme Court was: If the appellate decree passed by the High Court makes a variation in the decision of the trial court under appeal in favour of a party who intends to prefer an appeal against the said appellate decree, can the said decree be said to affirm the decision of the trial court or not under Art. 133 (1) of the Constitution? Considering the problem of construction without reference to the previous decision and avoiding a technical and pedantic approach and reading the clause as a whole and giving the material words their plain grammatical meaning the Supreme Court observed - ". . . . . . . . . that the test of affirmance prescribed by the clause can best be satisfied if we take the appellate decree in its entirety and enquire whether the said decree affirms the decision of the trial court considered in its entirety. It is a matter of comparing the appellate decree with the decision of the trial court under appeal. If the appellate decree affirms the decree of the trial court it is a decree of affirmance; if there is a variation made by the appellate decree in the decision of the trial court the appellate decree is not a decree of affirmance and this position would not be affected whether the variation is made in favour of the intending appellant or against him and whether the variation made is minor or major. " In that case, it was argued that the decree appealed from must mean the decree under appeal dealing with the subject matter or matter in dispute proposed to be brought to the Supreme Court by the intending appellant. In repelling the argument, the Supreme Court observed as follows: "for one thing this argument may not be available where there is only one cause of action, and it is quite clear that the word 'decree' must have onemeaning applicable to all cases. Besides, in our opinion, this construction on which the argument is based is far too technical and artificial and cannot be regarded as reasonable". Reference was also made in that case to a decision of the Calcutta High Court in Dhirendra Nath Sarkar vs. Nechintapore Co. (2) to show that there can be more decrees than one in a suit which combines different causes of action and different claims made against different defendants in respect of different subject matters. After noticing the case in detail the Supreme Court observed as follows: "there are cases in which more than one decree can be and are passed under the Code of Civil procedure, for instance cases where preliminary decrees are passed, but the normal rule is one decree is passed in one suit and so we are not prepared to, accede to the argument that the first part of the relevant clause of Art. 133 (1) should be read on the basis that every decree passed in a suit should be held to be a composite decree made up of several decrees in respect of several claims or reliefs and that the decree appealed from is only that particular decree which is proposed to be brought in appeal to this Court. " It is true that there are some general observations in the judgment which, if considered without reference to context, can be availed of to support the petitioner's case. But, on a close scrutiny of the whole decision, we have reached a conclusion that the petitioner cannot derive assistance from this case for reasons given below: (1) In the first instance it must be remembered that the observations have been made to negative the broad contention that the decree, judgment or order appealed from should refer to the part of the decree sought to be challenged and it is in this context that the generality of the expression used must be understood and appreciated. (2) Besides, the general observations have to be considered along with modifying observations, for example, in para 5, it was stated - "normally, in each suit there is one decree and so it would be inconsistent with the scheme of the Code to divide the decree into several parts by reference to its relation to different claims or subject matters or to treat one single decree as consisting in fact of several decrees. " The words "normally" is significant. Similarly, the observations made after noticing the Calcutta case (2) also indicate the need of reading cautiously the general observations. It is well settled that the generality of the expression should read with reference to the facts and circumstances of the case in which the observations were made. In the Supreme Court the variation was in favour of an intending appellant and the ratio-decided of the Supreme Court is that the plaintiff can obtain certificate on an argument that the decree having been varied in his favour it is not a decree of affirmance. The position in the present case is, however, different. So far as the plaintiff and State-defendant are concerned, the decree of the appellate court is identical with the decree of the trial court. The State's appeal was dismissed and the plaintiff's appeal in so far as it sought the increase in the decretal amount against the State-defendant was also dismissed. Between the plaintiff and the State, the trial court's decree has been simply affirmed. Of-course, this court allowed the plaintiff's appeal and held that the defendant Nos. 2, 3, 4 and 7 are liable for the plaintiff's decree. This is a variation neither for nor against the intending State-appellant. This is a matter primarily between the plaintiff and the other defendants in which the State is not directly interested. The principle of the Supreme Court case in T. Rajaram vs. Radhakrishnayya (1) cannot obviously be extended to a case of a variation in decree of this nature which affects some other persons and not the intending appellant. In our opinion, the State is not entitled to contend that the decree having been varied, it is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute without showing that the appeal involves some substantial question of law. Next, it was argued that the appeal raises a substantial question of law regarding the vicarious liability of the State for tort committed by its public officers. Now, the question of the vicarious liability of the State for the tortuous acts of the public servants did not arise for consideration for the first time in this Court. This court had an occasion to consider the question in respect of cases in which the causes of action arose in the territories forming part of the erst-while State in State of Rajasthan vs. Rikhabchand (3) and after an exhaustive examination of the basic principles prevailing in United Kingdom and British India, formulated certain guiding principles which we have followed in the present case. The Supreme Court also had occasion to consider and apply the principles governing such vicarious liability in a number of cases. Having regard to these cases, we consider that the law is well settled and there is no divergence of opinion to be resolved and we cannot accept any suggestion that the law on the point has to be settled by an authoritative pronouncement of the Supreme Court. The only question is of application of the law to the particular set of facts and that does not constitute a substantial question of law. Lastly, it was argued that the case should be certified as a fit one for appeal to the Supreme Court under Art. 133 (l) (c) of the Constitution. The conten-tion cannot at all be accepted having regard to our observations made above in connection with the petitioner's case that the appeal involves substantial question of law.
(3.) THERE are no merits in these applications and they are hereby dismissed with costs. .;