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PETITIONER: CHHITARMAL

       Vs.

RESPONDENT: M/S.  SHAH PANNALAL CHANDULAL

DATE OF JUDGMENT: 14/01/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. HIDAYATULLAH, M. MUDHOLKAR, J.R. SIKRI, S.M.

CITATION:  1965 AIR 1440            1965 SCR  (2) 751  CITATOR INFO :  R          1972 SC2356  (23,27,33,38)  RF         1972 SC2396  (14)  F          1974 SC1495  (9)

ACT: Constitution  of  India,  Art. 133(1)(a)  and  133  (1)  (b) -Requirements for grant of certificates to appeal to Supreme Court.

HEADNOTE: The  petitioner filed a suit in the court of  the  Sub-Judge claiming a decree for Rs. 10,665 and any balance ascertained as  due  to him on taking account, being proceeds  of  sales made by the respondents as the petitioner’s agents. The trial court passed a decree directing that an account be taken of the amount due and appointed a Commissioner for the purpose.   In appeal the High Court reversed the decree  and dismissed the suit.  An application filed by the  petitioner for  a certificate under Art. 133 was rejected by  the  High Court. Upon a petition for special leave to appeal tinder Art. 136, it  was  contended  on behalf of the  petitioner,  that  the judgment  of  the High Court involved a  claim  or  question respecting property of a value exceeding Rs. 20,000 and  the petitioner   was  entitled  as  a  matter  of  right  to   a certificate from the High Court under Art. 133(1)(b). HELD : Under cl. (a) what is decisive is the amount or value of  the  subject-matter in the court of first  instance  and "still in dispute" in appeal to the Supreme Court; under el. (b)  it  is the amount or value of the  property  respecting which a claim or question is involved in the judgment sough, to  be  appealed  from.  The expression  "property"  is  not defined  in  the Code, but having regard to the use  of  the expression " amount" it would apparently include money.  The property respecting which the claim or question arises  must be property in addition to or other than the  subject-matter of  the dispute.  If in a proposed appeal there is no  claim or  question  raised  respecting  property  other  than  the subject-matter, cl. (a) will apply : if there is involved in

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the  appeal  a claim or question respecting property  of  an amount  or value not less than Rs. 20,000 in addition to  or other  than the subject-matter of the dispute el.  (b)  will apply. [754 B-E] In,  the  present  case, the claim in the  court.  of  first instance   did  not  reach  Rs.  20,000,  and  therefore   a certificate could not be granted under Art. 133(1)(a).  [754 A] It could not be said that a judgment dealing with a claim to money  alleged  to be due from an agent for price  of  goods belonging  to the principal, sold by the agent,  involved  a claim or question respecting the goods which had been  sold. Furthermore,  although  the  petitioner’s  claim  on  appeal including  interest exceeded Rs. 20,000, this was still  the subject-matter in dispute; the judgment did. not involve any claim  or  question respecting property in  addition  to  or other than the subject-matter of the suit. Article 133(1)(b) was, therefore, also not applicable.  [754 G-H; 755 A] 752

JUDGMENT: CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 890 of 1964. Petition  for special leave to appeal to the  Supreme  Court from the judgment and decree dated December 16, 1963 of  the Rajasthan High Court in Civil First Appeal No., 54 of 1956. Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Naunit Lal, for the petitioner M. C. Setalvad, and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Shah, J. The petitioner applies for special leave to  appeal under Art. 136 of the Constitution, against the judgment  of the High Court of Rajasthan dated December 16, 1963 in Civil First Appeal No. 54 of 1956 on two grounds (1)  that the judgment of the High Court involves a claim or question respecting property of not less than Rs. 20,000  in value,  and the High Court erred in refusing  a  certificate under Art. 133(1) (b) of the Constitution; and (2)  that  the  case  is otherwise fit  for  appeal  to  the Supreme Court. The  material  facts bearing on the plea raised  are  these. The petitioner commenced on July 2, 1951 in the Court of the Subordinate Judge, First Class, Ajmer an action against  the respondents  claiming  a  decree  for  Rs.  10,665  and  for rendition  of  accounts in respect of the  balance  of  sale proceeds of 104 bales of cotton purchased by him through the agency of the respondents.  The petitioner claimed that  104 bales   of  cotton  purchased  by  him  were  sold  by   the respondents   as  his  agents  on  May  14,  1948  for   Rs. 27,267/13/6 and without settling the account the respondents delivered towards that amount a demand draft for Rs.  11,000 which  was encashed and four cheques of the aggregate  value of Rs. 13,000 which because of lack of arrangement with  the respondents’  bankers were not encashed, and the  petitioner on that account was entitled to receive from the respondents Rs.  10,665 being the amount due on the foot of  dishonoured cheques  and  interest thereon at the rate of 6%  per  annum between  July  2,  1947  to July 1,  1951,  less  Rs.  4,000 subsequently received by him.  The petitioner also claimed a decree for the balance of the price. 753 after  giving  credit  for  commission,  dalali  and  godown

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charges incurred by the respondents as his agents and as  he was  not  in  a "position to know" the  amounts  due  to  or disbursed  by  the  respondents, he  claimed  a  decree  for rendition  of account.  The subject-matter of the suit  was, therefore, a claim for Rs. 10,665 due to the petitioner on a cause  of action arising on cheques dishonoured and a  claim for  the balance of the price due as may be  ascertained  on taking accounts. The  trial Court passed a decree directing that  account  be taken  for  ascertaining the amount due in  respect  of  the entire  transaction  of 104 bales and  for  taking  accounts appointed  a  Commissioner.   The High  Court  of  Rajasthan reversed the decree passed by the Trial Court and  dismissed the suit, holding that the transactions in respect of  which the  claim  was  made by the petitioner  were  those  of  an unregistered firm constituted by the petitioner and  another person named Duli Chand and the suit was barred because  the firm  was  not  registered.  An  application  filed  by  the petitioner   for   certificate  under  Art.   133   of   the Constitution was rejected by the High Court. The judgment of the High Court proceeds entirely upon appre- ciation  of  evidence  and  on  the  findings  recorded  the petitioner’s suit must stand dismissed.  But counsel for the petitioner  urged  that  the  judgment  of  the  High  Court directly involves a claim or question respecting property of value  not  less than Rs. 20,000 and he was  entitled  as  a matter  of right to a certificate from the High Court  under Art.  133(1)  (b)  of the Constitution.   This  argument  is sought  to  be presented in two ways.  It is  urged  in  the first instance that the judgment of the High Court  involves a   question  relating  to  the  right  of  the   petitioner respecting 104 bales of cotton belonging to him and sold  by the   respondents  for  an  amount  exceeding  Rs.   27,000. Secondly,  it  is urged that pursuant to the  order  of  the Trial   Court   a  Commissioner  was   appointed   and   the Commissioner reported that Rs. 12,089/14/6 with interest  at the  rate of 6% per annum from May 14, 1948 were due to  the petitioner  and as the amount due to the petitioner on  that footing  was  not less than Rs. 20,000 at the  date  of  the decree  of  the High Court, the judgment of the  High  Court involved  a  claim  respecting property of  that  amount  or value.  In our view the contention raised by the  petitioner under either head has no substance. It  is conceded, and in our judgment counsel is right in  so conceding, that the petitioner could not seek a  certificate under cl. (a) 754 of  Art. 133(1).  The claim in the court of  first  instance did  not  Teach Rs. 20,000 and one of the conditions  for  a certificate under that clause being absent, the claim  could not  be  maintained.   To attract the  application  of  Art. 133(1) (b) it is essential that there must be-omitting  from consideration  other  conditions  not  material-a   judgment involving  directly  or indirectly some  claim  or  question respecting  property  of an amount or value  not  less  that Rs.20,000.   The variation in the language used in cls.  (a) and (b)   of  Art. 133 pointedly highlights  the  conditions which attract the   application  of the two clauses.   Under cl.  (a)  what  is decisive is the amount or  value  of  the subject-matter in the court of first instance and "still  in dispute" in appeal to the Supreme Court: under cl. (b) it is the amount or value of the property respecting which a claim or  question  is  involved  in the  judgment  sought  to  be appealed from.  The expression "property" is not defined  in the  Code,  but having regard to the use of  the  expression

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"amount"  it  would  apparently  include  money.   But   the property respecting which the claim or question arises  must be property in addition to or other than the  subject-matter of  the dispute.  If in a proposed appeal there is no  claim or  question  raised  respecting  property  other  than  the subject-matter, cl. (a) will apply : if there is involved in the  appeal  a claim or question respecting property  of  an amount  or value not less than Rs. 20,000 in addition to  or other  than the subject-matter of the dispute cl.  (b)  will apply. In  the  present case the subject-matter in  dispute  was  a claim for money.  A part of that claim was definite and  the rest was to be ascertained on taking accounts.  The judgment did  not involve any claim or question relating to  property in  addition to or other than the subject-matter in  dispute of  the  value  of  Rs. 20,000.   It  was  admitted  by  the petitioner in his plaint that the bales of cotton were  sold by  the  respondents  as  his  agents.   The  right  of  the respondents  to sell the bales was not in dispute. what  was challenged  was the right of the respondents to  retain  the price  received by them.  It cannot be said that a  judgment dealing  with  a claim to money alleged to be  due  from  an agent for price of property belonging to the principal  sold by the agent either directly or indirectly involves a  claim or question respecting property which is sold. Nor  does the alternative ground assist the petitioner.   It is   true  that  by  his  petition  the  petitioner   claims restoration of the decree of the Trial Court, and by  adding interest  at  the rate of 6% per annum to  the  petitioner’s claim as awarded under the report 755 of  the Commissioner, the claim of the petitioner on  appeal exceeds Rs. 20,000.  But this is still the subject-matter in dispute  :  the  Judgment  does not  involve  any  claim  or question  respecting property in addition to or  other  than the subject-matter of the suit. The petition therefore fails and is dismissed with costs. Petition dismissed. 756