Ikramul Huq vs Wilkie and others

This was a petition for special leave to appeal from a decree of the High Court at Calcutta dated 22nd July 1905. 2. The petitioner instituted a suit on the Original Side of the High Court against Messrs. Graham and Company of Calcutta for specific performance of an agreement to take a lease of certain land and in the alternative for damages for Rs. 30,000. 3. The suit failed in the first Court as regarded the claim for specific performance, and there was no appeal against the decree on that point. The first Court directed an enquiry as to damages, but said nothing as to the principle on which the damages were to be assessed. The matter then came on appeal before the Appellate Side of the High Court, and the suit was dismissed with costs. 4. The petitioner then applied to the High Court for leave to appeal to His Majesty in Council. 5. On that application the High Court made an order, in which they said:

In order to bring the application within Section 596 of the Civil Procedure Code the petitioner must satisfy us that the amount or value of the subject-matter of the suit in the Court of first instance is Rs. 10,000 or upwards, and the amount or value of the matter in dispute on appeal to His Majesty in Council is the same sum or upwards. We do not think he has done this. It is true in his plaint he claims damages amounting to over Its. 10,000, and in his affidavit on this application he places his damages on the same footing, as if he had obtained a decree for specific performance. He cannot now appeal from the refusal to grant specific performance; he can only appeal on the question of damages, and he has not shown that these damages necessarily amount to Rs. 10,000 or upwards in both Courts. The difficulty we feel in acceding to the application is that the obligation rests upon the petitioner to make out that the case fails within Section 596 of the Code, and this we think he has failed to do. Our powers are limited by the Code and we cannot go outside it. 6. The High Court therefore refused the application on this petition. 7. De Gruyther for the petitioner contended that the value of the subject-matter of the suit must be taken to be the amount claimed by the petitioner, until by enquiry or otherwise it; has been determined that he ought to receive a less amount; and that the present case fell within the principle of the case of Mohideen Hadjiar v. Pitchey (1893) A.C. 193. in accordance with which the amount of mesne profits claimed, but not ascertained, was allowed to be considered in determining the appealable value.