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Judgment
Horwill, J.—The plaintiffs, who were the owners or lessees of a picture house, sued to evict from it the defendants, who were partners of
the third defendant in the conducting of the cinema business in the picture house. The defendants resisted the suit mainly on the ground that they
were entitled under Act XV of 1946 (the -Madras Buildings Lease and Rent Control Act) to remain in possession since they satisfied the definition
of "" tenants "" found in Section 2 (4) of that Act. They had no lease deed in their favour; but they sought to support their claim by contending that by
virtue of the partnership, they had entered into with the lessee (the third plaintiff) with the exnress consent of the first plaintiff, there was either an
equitable assignment of the lease (Exhibit A-6) by the third plaintiff in favour of the partnership of themselves and the third plaintiff or that this lease
in favour of the third plaintiff must be regarded as a lease to the partnership. These and other points were considered by the learned District Judge
and decided in favour of the plaintiffs. A further important issue in the suit was with regard to the quantum of damages to which the plaintiffs were
entitled. The learned Judge passed a decree in favour of the plaintiffs for damages at the rate of Rs. 200 a day from the date when the lease in
favour of the third plaintiff expired to the date when the defendants might hand over possession to the new lessees, plaintiffs 3 to 7. In appeal, we
agreed with the lower court that the defendants obtained no right as lessees and were not tenants within the meaning of Section 2 (4) of Act XV of
1946, and that upon the expiry of the lease in favour of the third plaintiff, the defendants became trespassers and were bound to pay damages to
the plaintiffs. With regard to the quantum of damages, we however modified the decree of the lower Court in the defendants'' favour in three ways.
In the first place, we found that the rate of Rs. 200 a day was excessive and decreased it to Rs. 50 a day. We also held that for two short periods,
the non-working of the cinema was due to the acts of the plaintiffs themselves and that for those periods the defendants were not therefore liable
for any damages at all. The third modification of the lower Court''s decree on the question of damages was that we held that while the business was
being conducted by the first defendant alone, or by him in conjunction with the fourth plaintiff, no damages could be awarded; for the first
defendant, as receiver, was bound to account to the court for the actual profits made and that the amount due to the plaintiffs for the periods in
which the receiver was or the recivers were conducting the cinema, the profits would have to be ascertained by the court in execution. The
question is whether the defendants are entitled to leave to appeal to the Federal Court against our decree, since the value of the subject-matter of
the suit and appeal exceeds Rs. 10,000, and our decree is not one affirming in its entirety the decree of the lower court.
It is seen that the only modifications made in the decree of the lower court were in favour of the defendants; and in those respects in which we
have modified the decree of the lower court in the defendants'' favour, there is no ground for appeal to the Federal Court.
The question whether an appeal to the Privy Council where the variation of the decree of the trial court by the appellate court is in favour of the
person who seeks to appeal to the Privy Council lies or not has been considered in several cases of this court. Those which seem most relevant to
the case here under consideration are A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , Chavali Velayya Vs. The President of the Board
of Commissioners for Hindu Religious Endowments, , Karunalaya Valangupuli Pandian alias Karunalaya Pandian Vs. Rev. Father Pignot, Father
Superior of the Roman Catholic Mission (Rev. Father G. Forean, S.J., the present acting Father Superior of the Roman Catholic Mission,
Palamcottah, brought in the place of Rev. Father Pignot formerly representing the Mission), and L.P. Lakshmanan Chettiar and Others Vs.
Thangam alias Palanichami Chetti and Others, . In the first of these cases, the trial court passed a decree against defendants 1 and 4 for the full
amount claimed in the plaint; but against defendants 2 and 3 the decree was for a lesser amount than that claimed. The plaintiff appealed, and the
decree was affirmed with regard to the third defendant. The second defendant sought for leave to appeal to the Privy Council. It was held that as
far as the second defendant was concerned, the decree was one affirming the decision of the trial court and that therefore the second defendant
could not be granted leave to appeal. The learned Judges considered the previous case-law on the subject and said,
The right way of construing Section 110 is to read the words '' decree or final order ''in Clause 3 in conjunction with and to treat them as relating to
'' the subject matter'' mentioned in Clause 1.
and came to the conclusion that there was overwhelming authority in support of the view that where the proposed appeal to the Privy Council was
with regard to subject-matters in which the appellate court had confirmed the decision of the trial court, no appeal lay; and agreeing with
Bibhootibhooshan Datta v. Sripati Datta (1934) ILR 62 Cal. 257, they pointed out the anomalies that would result from a different interpretation of
Sections 109 and no of the Civil Procedure Code, which would refuse leave to appeal if there had been no variation in the petitioner''s favour;
whereas he would have a right if some modifications had been made in favour of another party to a suit which did not affect the petitioner''s right.
In Chavali Velayya Vs. The President of the Board of Commissioners for Hindu Religious Endowments, , the trial court held against the archakas
of a temple that five items belonged to the deity. In appeal it was held that only three of the items did. The archakas then sought for leave to appeal
to the Privy Council. The learned Judges while expressing their agreement with A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, gave the
further ground for holding that the archakas under circumstances had no right of appeal, for, according to the third clause of Section 110 no appeal
lies:
where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order.
unless the appeal involves some substantial question of law. The learned Judges pointed out the difference in the two words above italicised and
said that many matters may be decided in a suit and that if the decree of, the appellate court affirms any one of those decisions, no appeal can lie
against the appellate decree with regard to that decision. In Karunalaya Valangupuli Pandian alias Karunalaya Pandian Vs. Rev. Father Pignot,
Father Superior of the Roman Catholic Mission (Rev. Father G. Forean, S.J., the present acting Father Superior of the Roman Catholic Mission,
Palamcottah, brought in the place of Rev. Father Pignot formerly representing the Mission), , the plaintiff''s suit was dismissed. In appeal, he
pressed his case only with regard to one item and against one respondent. On account of some arrangement arrived at between the parties and
approved of by the court, the decree of the trial court was varied with regard to that particular item. There again, the distinction between the two
words "" decision "" and "" decree "" was stressed; and it was said with regard to the subject matter of the proposed appeal to the Privy Council that
the decree of the appellate court was one of affirmance. These decisions and others came up for consideration before a Full Bench of this court in
Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, There, the plaintiff filed a suit for a declaration that the alienations of eleven
items were not binding on him. The trial court decided in his favour with regard to six items and disallowed his claim with regard to the remaining
five. The defendants filed an appeal with regard to the six items and the plaintiff filed a memorandum of cross-objections with regard to four out of
the five items with regard to which a declaration had been refused. The appeal was dismissed and the memorandum of cross-objections allowed.
The defendants sought for leave to appeal to the Privy Council, which was granted. That is seen to be a case in which the variation of the decree of
the trial court was against the persons who sought for leave to appeal to the Privy Council. The matter had apparently been posted before a Full
Bench because of a decision in M.L.M. Ramanathan Chetti Vs. V.K.N.S.P. Subramanian Chetti and Others, in which on somewhat similar facts,
the court had held that no appeal lay. The question before the learned Judges was complicated because the value of the four items was below Rs.
10,000, whereas the value of the six items was above Rs. 10,000. The question was whether in view of the fact that the value of the four items,
which formed the subject-matter of the memorandum of cross-objections was less than Rs. 10,000, an appeal would lie to the Privy Council. It
was held that since the subject-matters of the suit, the appeal and the proposed appeal to the Privy Council were all of a value of more than Rs.
10,000, an appeal would lie. The learned Judges held that the decree of the appellate court was one decree and it certainly varied the decree of
the trial court. In M.L.M. Ramanathan Chetti Vs. V.K.N.S.P. Subramanian Chetti and Others, the learned Judges seemed to have regarded the
appeal and the memorandum of objections as two separate appeals and the decree of the court thereon as embodying two separate decrees.
However, the matter before the Full Bench was, as would appear from the judgment of the learned Chief Justice at the bottom of page 8 and the
beginning of page 9 "" the question whether there is a right of appeal in circumstances such as we have here"". During the course of the judgment, the
learned Chief Justice had to consider A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, which he found to be not in point. He said that in
that case
the appellate decree had certainly affirmed the trial Court''s decree so far as the second defendant was concerned and that the application for leave
did not travel beyond him. Although we do not accept all the observations made in the judgment, we see no reason to question the correctness of
the decision in the peculiar facts of the case.
What observations in the judgment of Venkatasubba Rao, J., the learned Chief Justice and the other learned Judges did not accept does not
appear; but it is clear that the Full Bench felt that A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , was not in point, and they did not
therefore have to consider the correctness or otherwise of the observations made therein. So that case remains good law despite the Full Bench
decision. With regard to Chavali Velayya Vs. The President of the Board of Commissioners for Hindu Religious Endowments, , all that the learned
Chief Justice had to say was that it did not go beyond A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, and that therefore it was not
necessary to discuss the case in detail. No disapproval is noted with regard to this reasoning of the learned Judges in Chavali Velayya Vs. The
President of the Board of Commissioners for Hindu Religious Endowments, or of the observations of the learned Judges in that case with regard to
the important distinction between the words "" decision,"" and ""decree"".
The effect of the above Full Bench decision upon the earlier decisions came up for consideration in L.P. Lakshmanan Chettiar and Others Vs.
Thangam alias Palanichami Chetti and Others, where all the authorities bearing on the question were discussed in considerable detail. The cases
above discussed may be distinguished from the case here under consideration in that they related to decisions with regard to the rights of various
defendants to properties in which they were separately interested; and so it could be argued that those cases were authorities only for the position
that where the appellate court had affirmed the decision of the trial court with regard to the interest of a particular defendant or a particular item of
property, no appeal would lie with regard to that interest or property. In L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami
Chetti and Others, , however, the plaintiff filed a suit for partition attacking the genuineness of a partition deed evidencing an earlier partition. The
suit was dismissed; and the decision of the trial court was substantially affirmed in appeal. But there was a variation in two respects; one with
regard to the maintenance of the tenth defendant and the other with regard to the debts of the first defendant, which he alleged were payable by the
family. The learned Judges carefully considered not only the previous authorities of the Madras High Court on this subject, with which they
expressed their agreement, but also the decisions of other High Courts, agreeing with the views expressed by the High Court of Calcutta, Bombay
and Lahore and preferring them to the views held by the Patna and Allahabad High Courts. They approved of the distinction drawn in Chavali
Velayya Vs. The President of the Board of Commissioners for Hindu Religious Endowments, and Karunalaya Valangupuli Pandian alias
Karunalaya Pandian Vs. Rev. Father Pignot, Father Superior of the Roman Catholic Mission (Rev. Father G. Forean, S.J., the present acting
Father Superior of the Roman Catholic Mission, Palamcottah, brought in the place of Rev. Father Pignot formerly representing the Mission), with
regard to the words "" decision "" and "" decree "" and again held that where the decision of the court on any matter was affirmed by the appellate
court, no further appeal to the Privy Council would he unless it raised a substantial question of law.
The principles to be applied by us in this application could not have admitted of much discussion had it not been for the remarks of the Privy
Council in allowing an application for special leave to appeal in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 967 (P.C.).
There, the plaintiff brought a suit for the possession of certain property on the ground that he was the adopted son of the last male holder. The
second defendant raised certain contentions which were not accepted; and so a decree was passed in favour of the plaintiff. The court however
decreed a maintenance for the first petitioner (in the special leave application) at the rate of Rs. 800 per annum. In appeal, the decree was modified
by increasing the maintenance of that petitioner from Rs. 800 to Rs. 1,200. The first petitioner then applied for leave to appeal to the Privy Council
which was refused. Thereupon, the petitioner filed an application to the Privy Council for special leave. That application being unopposed the
matter was heard ex parte; and Lord Dunedin on behalf of their Lordships pronounced this very short order:
In the opinion of their Lordships the contention of the petitioner''s counsel as to the effect of Section 110 of the CPC is correct, and the petitioners
had a right of appeal. They should have special leave to appeal, but it should be limited to the question as to the maintenance allowance.
This decision was considered in all the cases above referred to, as well as in numerous cases in other High Courts. Rankin, C.J., in Narendra Lal
Das Chaudhury v. Gopendra Lal Das Chaudhury (1927) 31 C.W.N. 572 said.
The question is, whether, on the strength of the only case before the Privy Council which we have for our guidance, the views hitherto adopted in
this and other High Courts require to be further considered. The question is whether the judgment of their Lordships means that, in every case
where the decree of the High Court is not a mere decree dismissing the appeal or a mere decree affirming the order of the Court below, the
necessity for showing a substantial question of law is done away with. It appears to me that the case of Annapurnabai v. Ruprao (1924) L.R. 51
IndAp 319 : ILR 51 Cal. 969 (P.C.), is not in itself a sufficient authority to justify this Court in abandoning the principle which. it has with other
High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what
is the subject-matter of the appeal to His Majesty in Council.
A similar view was expressed by the Chief Justice of Bombay in Kapurji v. Pannaji AIR 1929 Bom. 359, and by Din Mohammad, J., in
Brahmanand v. S.D. Sabka AIR 1944 Lah. 329. The learned Judges of this Court in the various decisions referred to have agreed with these
remarks. In Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, , the learned Chief Justice set out the facts which gave rise to the
application for special leave in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 969 (P.C.), but did not say that in view of the
Privy Council decision, the earlier decisions of this court seemingly to the contrary were bad. The learned Judges in L.P. Lakshmanan Chettiar and
Others Vs. Thangam alias Palanichami Chetti and Others, 7 , in interpreting the Full Bench decision did not regard it as overruling or disapproving
of any of the decisions of this court other than M.L.M. Ramanathan Chetti Vs. V.K.N.S.P. Subramanian Chetti and Others, . The learned Judges,
however, added towards the end of their Judgment,
If the subject-matter of the dispute in appeal had been the amount of the decree or the amount of damages, a variation whether to the prejudice or
in favour of the petitioner would not alter the decree of variance into one of affirmance.
It is possible to argue that even in determining the quantum of damages we came to many decisions; and that against the decisions in favour of the
petitioners no further appeal is sought; but no case to which our attention has been drawn has carried the process of anatomical dissection of the
judgment anything like as far as the learned Counsel for the respondents would have us do in this application. I think it would be more in accord
with the principles accepted and followed in L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami Chetti and Others, where the
learned Judges seemed to consider that Annapumabai v. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 969 (P.C.) had at least a limited
applicability to cases on all fours with it, if we granted leave to appeal on the ground that our decree is not one of affirmance on the question of
damages.
I am not very impressed with the argument that substantial questions of law are involved; but since the petitioners are entitled to a certificate on
other grounds, it is not. necessary to give reasons for rejecting it. The petition is allowed with costs.
Raghava Rao, J.
I agree that this petition should be ordered. The facts of the matter before us as well as the facts of the several rulings dealt with in the judgment
of my learned brother are so fully stated in it that in this supplementary judgment which I am now delivering, I propose to confine myself to a
discussion of the principles emerging from the rather confused case-law on the subject and to indicate the points of view from which I have
endeavoured to arrive at my decision.
The statutory provisions relevant to the decision of the question before us. are what are contained in Sections 109, and no of the CPC of 1908
In construing them it is necessary to bear in mind a few fundamental principles which, I conceive, are incapable of dispute. While it is clear that a
right of appeal which is always the creature of statute cannot be enlarged beyond the letter of the statutory provision Conferring the right, it is
equally clear that the right cannot be curtailed in a manner not warranted by such letter. It is the letter, in my opinion, that essentially matters for the
construction of the statutory provision into which speculations ought not to enter about what the Legislature may or may not have intended, apart
from what it has expressed by the language that it has employed., Further, to use the words of Reilly, J., in Perichiappa Chettiar v. Nachiappan
(1930) 35 L.W. 206 :
Section 109(a), CPC gives a right of appeal to His Majesty in Council from any decree made on appeal by a High Court. Section no, CPC
qualifies that right of appeal by making two exceptions to it. First, there is no appeal u/s 109(a) if the amount or value of the subject-matter of the
suit in the Court of first instance or in dispute in the proposed appeal is less than Rs. 10,000 and the decree does not involve directly or indirectly
some claim or question to or respecting property of that amount or value. Secondly, there is no appeal u/s 109 (a) if the decree of the High Court
affirms the decision of the Court immediately below the High Court and the proposed appeal does not involve any substantial question of law.
These two exceptions, as they partially take away the right of appeal given by Section 109(a) must be strictly construed.
The result yielded by the application of these rules of construction to Section 109, CPC cannot, I think, be better expressed than in the language of
the same learned Judge in the same case appearing lower down in a passage which I take leave to quote here:
At one time it was held by the Calcutta High Court that, even when a decree of that Court had modified a decree of the lower Court on appeal, it
was an affirming decree for the purpose of Section 110, Civil Procedure Code, so far as it agreed with the decision of the lower Court, and that, if
the proposed appeal to His Majesty in Council referred only to that part of the decree, some substantial question of law was necessary to give a
right of appeal. That view, which it may be pointed out involved the implication of words not found in Section 110, was taken in Raja Sree Nath
Bahadur v. The Secretary of State for India in Council (1904) 8 C.W.N. 294 and Annapumabai v. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51
Cal. 969 (P.C.) but has been shown to be incorrect by the decision of the Judicial Committee in the latter case. Although that implied extension of
the exceptions to Section 109(a) is no longer possible, it is urged for defendant 2 that we are still entitled to effect a different extension of the
exceptions by reading the last clause of Section 110 as if it ran "" provided that, so far as the decree or final order appealed from in respect of any
separable part of the case affirms etc."" and that, if that part involves no substantial question of law, it should be excluded in calculating the
necessary Rs. 10,000. The view appears to have been taken in Narendralal Das Chowdry v. Gopendra Lal Chowdry (1927) 31 C.W.N. 572 and
Kapurji Magniram Vs. Pannaji Debichand, . But with great respect I am not prepared to follow those decisions. If a decree is really a composite
decree or a series of decrees dealing with what should strictly be the subject of separate suits e.g., a decree dealing with alienations in favour of
different defendants, which by long established practice we have allowed to be made the subject of one suit--then it may be proper to separate
each decree of the series for the purpose of appeal to His Majesty in Council. But apart from that in my opinion we are bound by the plain
language of Section 110, Civil Procedure Code, and are not at liberty to read into it any words which are not to be found there actually or by
necessary implication.
Anantakrishna Aiyar, J., the other learned Judge, who was a party to the decision in Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206,
remarks much to the same effect in these words at page 215 of the report:
The argument advanced on behalf of the respondent necessitates that very many words should be implied in Section 110 to justify the
interpretation of the section contended for by him. We feel that it is not open to us to do so. Section 109 gives a right of appeal to the Privy
Council. Section no is a proviso to Section 109. It is a rule of law that a proviso should receive a strict construction. It is not open to the Court to
add words to a proviso with a view to enlarge the scope of the proviso. The proviso must be restricted to the scope reasonably conveyed by the
words used therein.
This result, as will be seen from the quotations, is the logical corollary to the reasoning accepted by the Judicial Committee of the Privy Council in
Annapurnabai v. V. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal.969 (P.C.). It seems to me that it is not open to any court in India to whittle
down or eviscerate that decision in any manner, or to recognise any implied extension of the exceptions to Section 109(a) which are not to be
found in the statute itself. That the pronouncement by the Judicial Committee was made in a short judgment or on an application heard ex parte is
hardly any ground for any Indian High Court to refuse to follow and give effect to their Lordships'' clear and categorical language. Nor does
Rankin, C.J''s judgment in Narendra Lal Das Chaudhury Vs. Gopendra Lal Das Chaudhury and Others, which has been followed in later cases of
this court which have differed from Perichiappa Chetti v. Nachiappa (1930) 35 L.W. 206, disclose any convincing reason for limiting the
overruling effect of the Privy Council decision to the invalidation of Sreenath Roy''s case (1904) 8 C.W.N. 294, on its own facts without more.
The learned Chief Justice observes at page 544, column 1 of the report that that case is the origin of the doctrine that the language which now finds
place in Section 110 of the Code is to be construed with reference to the subject matter in dispute in the appeal to the Privy Council. His Lordship
observes too at page 545, column 2 that the particular application made in that case of the principle that you have to have regard to the subject
matter of dispute in appeal to the Privy Council must be taken as overruled, and yet His Lordship shrinks from holding that the doctrine itself
stands overruled and winds up his discussion with a conclusion expressed in the following words at page 546 of the report:
We may take it, I think, that where theamount is a question in dispute, the fact that the Courts differ and that the higher Court differs in favour of
the applicant does not mean that the decision is one of affirmance, but I am not, in a case of this kind, prepared to say that because on a totally
different point, namely, a point about the share, the applicant has succeeded and succeeded altogether so that he has no further grievance in that
matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Courts have been in
agreement.
This illogical, laboured and not particularly well reasoned process--to speak with all deference to the learned Chief Justice of the High Court of
Bengal--of delimiting the effect of the Privy Council decision in a manner not warranted. by the plain language of their Lordships which further
accords with the plain language of the Statute has been followed by another Bench decision of the Calcutta High Court reported in
Bibhootibhooshan Datta v. Sripali Datta (1934) ILR 62 Cal. 257 in the course of which the learned Judges (Mukerji A.C. J. and S. K. Ghose J.)
refer at page 260 of the report to all the cases decided by the several High Courts subsequently to the Privy Council decision in Annapurnabai v.
Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 969 (P.C.), in which a contrary view was taken. The learned Judges refer in that list of
authorities to Perichiappa Chettiar v. Nachiappa (1930) 35 L.W. 206, but they do not anywhere in the judgment attempt to meet the cogent
reasoning behind Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206 or the three Patna decisions to which they make a reference in the
same connection. They then refer to Sreenath Roy''s case (1904) 8 C.W.N. 294 and Rankin, C.J''s view in Narendra Lal Das Chaudhury Vs.
Gopendra Lal Das Chaudhury and Others, --with which they agree--that that case is no longer good law after the Privy Council ruling in
Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 969 (P.C.) They accept Rankin, C.J''s conclusion expressed at the end of the
judgment in words which I have quoted earlier and also the conclusion of the Nagpur Judicial Commissioner''s court to the same effect expressed
in words which they quote at page 263 of the report, namely,
Where the modification of a decree of a lower Court consists of a modification of a pecuniary nature in the appellant''s favour on a matter to be
debated before the Privy Council, it amounts to a variation of the decree of the trial Court, and it is immaterial as far as that point is concerned,
whether u/s 110, any substantial question of law is involved. But the appellant cannot make that decision a basis of appeal to the Privy Council on
grounds unconnected with or dissociable from those on which he has succeeded and on which the Courts were of one mind.
By the way, I may observe here that the word "" succeeded "" is a mistake and ought to have been ""failed "". The learned Judges then refer to
Bansilal v. Gopal Lal (1928) ILR 10 Lah. 688 and Nathulal v. Raghubir Singh (1931)29 A.L.J. 968, the one accepting and the other rejecting the
test of substantial and not trivial variance as being of the essence of the test applicable. They then wind up the discussion of the Case-law with this
observation:
The above in short is the position of authorities bearing on the point. We have carefully considered the matter and are inclined to agree in the view
of Rankin, C.J., as to the true effect of Annapurnabai''s case (1924) L.R. 51 IndAp 319 : ILR 51 Cal. 969 (P.C.), and we would prefer to adhere
to it until a more definite and authoritative pronouncement is made by the Judicial Committee to the contrary.
It is a pity that in this judgment which seems indeed well considered, there is, if at all, no adequate consideration--I mean by way of an attempt to
refute--of the reasoning so pointedly set forth in Perichiappa Chetti v. Nachiappan (1930) 35 L.W. 206. That may have been because the Bench
which decided Bibhootibhooshan Datta v. Sripati Datta (1934) ILR 62 Cal. 257 felt itself apparently bound by an earlier Bench decision of their
own High Court and could not of course be expected to give it up in favour of the view of this High Court or of any other High Court and did not
feel itself called upon to enter into any detailed discussion of the case of our High Court reported in Perichiappa Chettiar v. Nachiappan. (1930)
35 L.W. 206
But how does the matter stand in this High Court after Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206. Since that decision which is
of 16th October, 1930, there has been a catena of decisions all speaking in one single voice discordant to that of Perichiappa Chetti v. Nachiappa
(1930) 35 L.W. 206 of which the latest reported is L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami Chetti and Others, , of
the nth October, 1946, but for the decision of a Full Bench reported in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, .
Strong reliance was placed for the petitioners before us on this ruling of the Full Bench, while it was contended for the respondents, that the Full
Bench ruling as interpreted by the latest Bench decision-- L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami Chetti and Others,
, concludes this petition against the petitioners.
Before dealing with these respective contentions of the parties based upon these two decisions, I may as well refer to two decisions reported in
A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, and Chavali Velayya Vs. The President of the Board of Commissioners for Hindu
Religious Endowments, , to both of which Venkatasubba Rao, J., was a party, his colleague having been in the former case Cornish, J. and in the
latter Abdur Rahman, J. The learned Judge pronounced the judgment of the Court in the one case and the leading judgment in the other in which
after expressing hesitation Abdur Rahman, J., eventually concurred. The earlier of them which alone refer to the ruling in Perichiappa Chettiar v.
Nachiappa (1930) 35 L.W. 206 does not on a careful scrutiny seem to deal with it fairly and squarely or address itself to the reasoning underlying
the interpretation placed by the learned Judges in that case on the relevant sections of the Civil Procedure Code. Curiously enough, Venkatasubba
Rao, J., in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , characterises the observations of the learned Judges in Perichiappa Chettiar
v. Nachiappa (1930) 35 L.W. 206 with reference to the effect of the Privy Council decision in Anndpurria-bai v. Ruprao (1924) L.R. 51 I.A. 319
: ILR 51 Cal 769 (P.C.) as obiter, little realising that they were part of the ratio decidendi of Perichiappa Chettiar v. Nachiappa (1930) 35 L.W.
206 concerning the proper interpretation of Section 110, Civil Procedure Code. The learned Judge, perhaps truly enough, observes that the
argument negatived by the Court in Perichiappa Chettiar v. Nachiappa (1930) 35 L.W. 206 was that there should be deemed to be as many
subject-matters as there were items in dispute. Says the learned Judge then:
This is precisely what we have been trying to show; there is a distinction between the decree taken as a whole and the several decisions in respect
of the various subject-matters comprised in that decree.
The learned Judge fails to realise here that the distinction so made by him stands however completely negatived by the decision in Perichiappa
Chettiar v. Nachiappa (1930) 35 L.W. 206. It may be noticed that the case in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , was one
in which the variation of the High Court''s decree was in respect of other parties than the party seeking to appeal to the Privy Council, although the
discussion embraced a case of variation in respect of subject-matter as wellas in respect of parties. Then, as regards the later decision in Chavali
Velayya Vs. The President of the Board of Commissioners for Hindu Religious Endowments, , it may be noticed that, there, the variation by the
High Court''s decree was in respect of certain items which concerned the same party seeking leave to appeal as had lost in both the courts in India
concerning the other items. So far as the reasoning of Venkatasubba Rao, J., is concerned it adds but little to that of the earlier ruling. Abdur
Rahman, J., however, it may be observed, gives reasons in support of a contrary view formed in his mind during the hearing which he. did not
command the courage to adhere to till judgment as a result of his discussion with his learned brother.
These two decisions depend for their soundness upon three considerations revealed by a. careful perusal : (a) that the right way of construing
Section 110, Civil Procedure Code, is to read the words "" decree or final order "" in Clause (3) in conjunction with, and to treat them as relating to,
the "" subject-matter "" mentioned in Clause (1) see A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, that in Section 110, Civil Procedure
Code, the words used in relation to the High Court whose judgment is sought to be appealed against are "" the decree "" whereas in regard to the
lower Court the expression used is ""decision"" see Chavali Velayya Vs. The President of the Board of Commissioners for Hindu Religious
Endowments, that there are bound to be a number of anomalies resulting from a contrary view, the enormity of which the learned Judges in
Bibhootibhoosah Datta v. Sreepati Datta (1934) ILR 62 Cal. 257, emphasised see Chavali Velayya Vs. The President of the Board of
Commissioners for Hindu Religious Endowments, and that the possibility of a certificate for leave to appeal to the Privy Council so as to embrace
matters on which there have been concurrent findings of fact against the petitioner does not, if the contrary view is accepted, stand excluded,
although at the hearing of the appeal by the Privy Council no such concurrent findings of fact can be assailed.
Now to take these three points seriatim the first does not seem to my mind to be well founded. The collocation of the words "" the subject-
matter in dispute on appeal to His Majesty in Council "" of the first clause of Section 110, CPC and of the words in the third clause "" the decree or
final order appealed from"" is not such as to necessitate the reading together of the two sets of words so as to curtail a right of appeal which on the
only mode of construction justified by the plain positions in the section occupied by the two sets of words or at any rate on an equally possible
manner of construction of which they are susceptible, is available to the litigant. This mode of reading together of the two sets of words it is that lay
at the root of the doctrine of Sreenath Roy''s case (1904) 8 C.W.N. 294, which admittedly stands overruled by Annapurnabai v. Ruprao (1924)
L.R. 51 I.A. 319: ILR 51 Cal. 969 (P.C.) and which, as I shall show in the sequel, the Full Bench in Gangadara Ayyar and Others Vs.
Subramania Sastrigal and Others, , also disapproves of by necessary implication, if not in express terms. The mode of construction indicated in
Perichiappa Chettiar v. Nachiappa (1930) 35 L.W. 206 is, in my opinion, quite natural and simple while that adopted in by Venkatasubba Rao, J.,
is highly strained, laboured and artificial. As regards the second point, I am inclined to think that the interpretation which Abdur Rahman, J., was
first disposed to place on the word "" decision "" as observed by him in Chavali Velayya Vs. The President of the Board of Commissioners for
Hindu Religious Endowments, is the correct interpretation. As regards the third point, there are two observations which fall to be made. The first is
that a consideration of possible anomalies is not, a ground for construing the plain words of a statute in a manner opposed to their plain meaning.
Further a concurrent finding of fact though not ordinarily liable to be disturbed by the Privy Council is not invariably quite so sacrosanct as is
supposed by the learned Judge. It may be useful in this connection to bear in mind the observations made by the Federal Court in the judgment of
Mahajan, J., in which the Chief Justice and the other learned Judges concurred in a recent case, Gangadara Aiyar v. Subramania Sastrigal, not still
reported so far as I know Since reported in (1949) 1 M.L.J. 568, at 573 : 1949 F.L.J 90 (96) concerning the rule against the re-opening of
concurrent findings of fact of the courts below,
Their Lordships of the Privy Council have always expressed unwillingness to depart from the general rule which prevents the fresh examination of
facts for the purpose of disturbing concurrent findings by the lower Courts. In Moung,Tha Hnyeen v. Moung Pan Nyo (1900) L.R. 27 I.A. 166 :
ILR 28 Cal, 1 (P.C.) Lord Hobhouse, in delivering the opinion of the Board, observed as follows : Although acute criticisms have been made upon
some points in the case, there has been nothing to show that there has been a miscarriage of justice, or that any principles of law or of procedure
have been violated in the Courts below, This case is one which very decidedly falls within the valuable principle recognised here, and commonly
observed in second Courts of Appeal, that such a Court will not interfere with concurrent judgments of the Courts below on matters of fact, unless
very definite and explicit grounds for that interference are assigned.'' The rule was again re-stated by Lord Lindley in Rani Srimati v. Khajendra
Narayan Singh (1904) L.R. 31 I.A. 127 : ILR 31 Cal. 171 (P.C.) and by Lord Macnaghten in Sanvalsingh v. Satrupu Kunwar (1905) 16 M.L.J.
77 : L.R. 33 I.A. 53 :I.L.R. 28 All. 215 (P.C.), and recently by Viscount Sumner in Mdhamed Ali v. William Stansfield Grosvenor Harney
(1928)33.C.675:115.I.C 722. In Jehangir Shappooji v. Revd. Savarkar (1932) 63 M.L.J. 408 (P.C.), Lord Wright observed as follows : '' Their
Lordships, have examined the whole history in some detail, because in regard to issue No. 7 the question is rather one of law, and in any case
there are not on that issue concurrent findings of fact; accordingly the whole case had to be considered in order to deal with that issue. But their
Lordships must not be taken to have in any way failed to give effect to the rule, that on an issue of fact, concurrent findings should be conclusive,
unless indeed where the enforcement of the rule would work obvious injustice, or the violation of some principle of law or procedure. The
importance of the rule is to discourage bringing before this Board issues of fact in which the appellant has failed in two Courts. The present case as
regards the issue to which the rule applies, affords a complete illustration of the wisdom of the rule. Apart from their decision on the merits, their
Lordships are for dismissing the appeal on that issue simply on the ground of the concurrent findings.'' All the eases bearing on the point
commencing from 1849 have been reviewed by Lord Thankerton while delivering the judgment of the Board in Bibhabati v. Ramendra Narayan
(1946) 2 M.L.J. 442 : L.R. 73 I.A. 246 : 51 C.W.N. 98 (P.C.) and a number of propositions have been enunciated explaining the scope of the
rule.
I have considered it necessary to refer to these cases because this is really the first case that came before us after the enlargement of the jurisdiction
of the Court and in which an attempt was made to reopen conclusions on questions'' of fact concurrently arrived at in the two courts below. The
rule as to concurrent findings is not a rule based on any statutory provision. It is a rule of conduct which the Privy Council had laid down for itself.
Following this rule the Judicial Committee usually declined to review the evidence for a third time unless there were special circumstances which
would justify a departure from this practice. As observed by Lord Thankerton in Bibhabati v. Ramcndra Marqyan (1946) 2 M.L.J. 442 : L.R. 73
I.A. 246: (F.B.) 51 C.W.N. 98 (P.C.), The practice is not a castiron one and the grounds given in the decisions justifying departure from the
above rule are merely illustrative. In an appropriate case and on a suitable occasion this matter may have to be fully considered and elucidated in all
its aspects, but for the purposes of this case it is enough to state th.it in the absence of circumstances justifying departure from this rule, this Court
would adhere to the practice developed by the Judicial Committee during the course of a century
It may likewise be pertinent to refer in this connection to the observations of Anantakrishna Ayyar, J., in Perichiappa Chettiar v. Nachiappa
(1930) 35 L.W. 206, which run in these terms:
When a petitioner is given a right of appeal to the Privy Council and he prima facie satisfied the conditions prescribed by the section, we think it is
our duty to grant him leave to appeal in such a case. As remarked by the Privy Council, '' the chance of success of the appellant in the proposed
appeal to the Privy Council is not material to such an application for leave. The Privy Council has repeatedly remarked in several cases that as
regards the amount of maintenance to be decreed to a litigant in India, the Privy Council will not ordinarily interfere, and yet the Privy Council
granted leave to appeal in the case reported in Annapurnabai v. Ruprao (1924) L.R. 51 I.A. 319 : ILR 51 Cal 969 (P.C.), regarding the amount
of maintenance. The Privy Council will not ordinarily interfere with concurrent findings of fact arrived at by Courts in India on any particular point;
yet if the decree of the High Court did not affirm the decision of the trial Court, and if the value of the subject-matter of the suit in the trial Court
and in the appeal to the Privy Council be Rs. 10,000 or upwards, a party desirous of appealing to the Privy Council would seem to be entitled to
leave to appeal from the decree of the High Court u/s 110, Civil Procedure Code, as interpreted by the Privy Council in the case reported in
Annapurnabai v. Ruprao (1924) L.R. 51 I.A. 319 : ILR 51 Cal. 969 (P.C.), though no substantial question of law is involved in the proposed
appeal.
Having thus disposed of the three points gatherable from the two decisions of Vert katasubba Rao, J., I now turn to the Full Bench ruling of this
Court reported in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, . That Full Bench, I agree with the respondents'' learned
advocate, expressly settled only the limited conflict between the two Divisional Bench decisions of this Court in M.L.M. Ramanathan Chetti Vs.
V.K.N.S.P. Subramanian Chetti and Others, and Sundara Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 476 : ILR 52 Mad 541, both by the
same Judges, Phillips and Odgers, JJ. True, also, there was no order of reference to a Full Bench made in that case; no question formulated by a
Divisional Bench for the decision of a Full Bench. The civil miscellaneous petition for leave to appeal in the Full Bench case having been originally
posted before the Divisional Bench as a matter of course, was presumably directed by that Bench of which the learned Chief Justice was
apparently a member to go before a Full Bench for disposal. The decision of the Full Bench was that the earlier decision in M.L.M. Ramanathan
Chetti Vs. V.K.N.S.P. Subramanian Chetti and Others, was wrong and the later decision Sundara Mudaliar v. Ratnavelu Mudaliar (1928) 56
M.L.J. 476 : ILR 52 Mad. 521 was right. But there are statements of the law to be found in the Full Bench decision as to the interpretation of
Sections 109 and no, Civil Procedure Code, the exact scope of the Privy Council ruling in Annapurnabai v. Ruprao (1924) L.R. 51 I.A. 319 : ILR
51 Cal. 541. 969 (P.C.), and the true meaning and effect of the decision in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , and of later
decisions which have followed it, which are material to the present discussion and which accordingly I wish to refer to.
First, there is a passage at page 9 of the report which runs in these terms:
Appeals to the Privy Council are governed by the provisions of Sections 109 and 110 of the Civil Procedure Code. Where the case fulfils the
requirements of the Code with regard, to value a party has a right of appeal, if the decree of the appellate Court varies the decree of the trial
Court. Where the appellate Court affirms the decision of the Court below, an appeal lies only when it involves some substantial question of law. In
this case it is admitted that there is no substantial question of law. Undoubtedly, the decree of this Court varied the decree of the trial Court in an
important respect, because it gave four more items of property to the plaintiff.
Two observations fall to be made on this passage. Firstly this, in my opinion, is a statement of the law on the basis of the language of the sections of
the CPC as they stand, made in broad and general terms which do not take in restrictions laid down by the two decisions of Venkatasubba Rao, J.
Secondly, the variance of the decree of the trial Court by the ""High Court to the prejudice of the party seeking leave to appeal seems here to be
made a point of But whether the point so seeming to be made was in reality intended must, I consider, be gathered from the second, passage in the
Full Bench judgment which I wish to refer to next. That passage at page 10 of the report comes close on a discussion of the facts of the Privy
Council ruling in Annapumabai v. Ruprao (1924) L.R. 51 I.A. 319 : ILR 51 Cal 969 (P.C.), and is in the words following:
In delivering the judgment of the Board, Lord Dunedin said that the contention of their counsel that they were entitled to leave by virtue of the
provisions of Section 110 of the Code was correct. They had a right of appeal. Lord Dunedin added that the petitioners'' chance of success was
not material to their application. As the petitioners accepted the finding with regard to the plaintiff''s adoption, the special leave given was limited to
the question of maintenance. There is here a pronouncement of the Judicial Committee that, where there is a variance of the decree passed by the
trial Court the party affected thereby is entitled as of right to a certificate subject, of course, to the refinements of the Code being fulfilled with
regard to value.
The words occurring in the last sentence of the passage quoted above are ""affected thereby"" which it must be noticed do not necessarily mean
prejudicially affected thereby "" but only mean"" which has had a material effect produced thereby"". I have consulted the Concise Oxford Dictionary
in this connection which confirms me in the interpretation of the words which I have just given. Moreover, the context of the learned Chief Justice''s
decision with reference to the Privy Council ruling in Annapumabai v. Ruprao (1924) L.R. 51 I.A. 319 : ILR 51 Cal 969 (P.C.), which was itself a
case of beneficial and not prejudicial variation lends support to the meaning I am assigning to this expression affected thereby. Prima facie, it may
be strange indeed that a party who has not been prejudicially but beneficially affected by a variation should be allowed to have by reason of such
variation a right of appeal in regard to the other matters which have gone against the party seeking leave to appeal in both the courts below or to
have his right of further appeal even in regard to the matter on which he has had partial variation to his benefit in the High Court determined without
exclusion from consideration of that part of the subject-matter which has gone in his favour in the High Court. The learned Chief Justice however
accepts this posision, however strange it may seem, in the passage quoted above, because of the Privy Council ruling reported in Annapumabai v.
Ruprao (1924) L.R. 51 I.A. 319 : ILR 51 Cal 969 (P.C.), whose facts he discusses at length in the context.
The next passage of the Full Bench judgment which I may refer to but need not quote is at page 11 of the report and discusses the case in
Perichiappa Chetti v. Nachiappa (1930) 35 L.W. 206 with no word of adverse comment and apparently with approval. This is the decision on
which adverse comment was made by Venkatasubba Rao, J., in Venkitasami Chetti v. Sekkutti Pillai3. Nor only is there no adverse comment
made on this decision by the judgment of the Full Bench, but there is adverse comment made by the Full Bench on the decision in A.
Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, in a passage to be found at pages 12 and 13 of the report Gangadara Ayyar and Others Vs.
Subramania Sastrigal and Others, of which it necessary to refer only to these following sentences at page 13,
It was held by Venkatasubba Rao and Cornish, JJ., that he (plaintiff) was not entitled to a certificate because this Court''s decree in respect of the
second defendant was one of affirmance. A distinction was drawn between the words '' decree or final order'' in Clause 3 of Section 110 and the
term '' the subject matter '' mentioned in Clause 1. There, all that the plaintiff was wanting to do was to challenge in the Privy Council the finding
that the second defendant was only liable for a small portion of the decree. The appellate decree had certainly'' affirmed the trial Court''s decree so
far as the second defendant was concerned and the application for leave did not travel beyond him. Although we do not accept all the observations
made in the judgment we see no reason to question the correctness of the decision on the peculiar facts of the case.
Before I enunciate what I gather to be the effect of the Full Bench ruling on the point now under consideration I desire to observe with reference to
the last quotation made by me from Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, that the sentence therein "" A distinction
was drawn between the words '' decree or final order '' in Clause 3 of Section 110 and the term '' the subject-matter '' mentioned in Clause 1"" is
the outcome of a little confusion of thought on the part of the learned Chief Justice. Venkatasubba Rao and Cornish, JJ., did not draw a distinction
but instituted a correlation between the words "" decree or final order "" in Clause 3 of Section 110 and the term "" the subject-matter "" mentioned in
Clause 1 by reading them together for the purpose of determining the scope of the right of appeal to the Privy Council. If we correct the confusion
and ''read the sentence in the proper manner, it follows that the clause at the beginning of the last sentence of the last quotation, namely, "" Although
we do not accept all the observations made in the judgment "" contains a disapproval by the Full Bench of the mode of construction of Section 110,
Civil Procedure Code, which began in Sreenath Roy''s case (1904) 8 C.W.N. 294, and ended with Annapurnabai v. Ruprao (1924) L.R. 51. I.A.
319: ILR 51 Cal. 969 (P.C.) The effect of the Full Bench decision in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, is, in my
judgment this, that it has not only accepted Sundara Mudaliar v. Ratnavelu Mudaliar (1926) 56 M.L.J. 476 : ILR 53 Mad. 521, in preference to
Ramanathan Chetti v. Subramania Chetti (1926) 51 M.L.J. 295 but also has accepted Perichiappa Chetti v. Nachiappa (1930) 35 L.W. 206 in
preference to Venkitasami Chetti v. Sekkutti Pillai (1900) L.R. 27 I.A. 166 : ILR 28 Cal. 1 (P.C.) and to later decisions which have followed the
last with regard to the proper mode of interpretation of Section 110, Civil Procedure Code. The approval made by the Full Bench of the decision
in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, is I think only on the basis of the peculiar facts of that case and not with reference to
the entire exposition of the law contained therein. The decision in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, was, in other words,
held correct, because the party seeking leave, i.e., the plaintiff, sought to take advantage of the High Court''s reversal of the decree of the trial
Court against the third defendant for making out a right of appeal against the second defendant against whom he had concurrently lost in both the
courts. It was held incorrect so far as it read together the words "" decree or final order "" in Clause 3 of the Section 116, CPC and the words ""the
subject-matter"" in Clause 1.
In the light of what I have said, it follows that I cannot agree with the view expressed in Lakshmanan v. Thangam (1946) 3 M.L.J. 465 : ILR
1947 Mad. 744, that the distinction that was drawn in Venkatasubba Rao J.''s judgment in A. Venkitaswami Chettiar and Others Vs. Sekkuti
Pillai, between the words ""decree or final order"" in Clause 3 and the term ""subject-matter"" mentioned in Clause 1 was specifically referred to by
the Full Bench without dissent. There was no such distinction drawn by Venkatasubba Rao, J., as pointed out by me already and as in some little
confusion erroneously supposed by the learned Chief Justice in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, , what was
done by him being only to read the words ""decree or final order"" in Clause 3 in conjunction with the expression "" the subject-matter "" in Clause 1.
Nor was this process of reasoning referred to by the Full,Bench without dissent as supposed by the Court in Lakshmanan v. Thangam (1946) 3
M.L.J. 465 : ILR 1947 Mad. 744, a disapproval of this process of reasoning being, in my opinion, what is implied in the declared declination of
the Full Bench to accept all the observations made in the decision in A. Venkitaswami Chettiar and Others Vs. Sekkuti Pillai, , I therefore hold that
the Full Bench decision in Gangadara Ayyar and Others Vs. Subramania Sastrigal and Others, has been wrongly understood by the Divisional
Bench which decided L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami Chetti and Others, and that the true view to take of
the matter in the existing state of the case-law of this Court and with due regard in particular to the Full Bench ruling in Gangadara Ayyar and
Others Vs. Subramania Sastrigal and Others, is that if quo ad the party seeking leave to appeal the decree sought to be appealed against is not one
of wholesale affirmance, it does not matter in what particular or to what extent the variation has taken place or whether the variation wholly or to
the extent to which it has gone is in favour of the party seeking to appeal or against him. In such a case, so long as the statutory requirement of
value of the subject-matter pf the suit as well as of the proposed appeal, inclusive of course even of portions on which there have been concurrent
findings against the party seeking leave to appeal, stands satisfied, the party is, in my opinion, entitled, without showing that a substantial question of
law is involved in the proposed appeal, tp a certificate which cannot be limited by the exclusion of such portions of the subject-matter from its
ambit.
While this is my view of the matter, on which it follows that the certificate of leave to appeal to the Federal Court asked for in this case should
be granted, it goes without saying that even on the narrower view adopted by this Court in L.P. Lakshmanan Chettiar and Others Vs. Thangam
alias Palanichami Chetti and Others, which is what my learned brother is prepared to accept, the applicant is entitled to the certificate asked for,
because this is not a case of complete variance of the lower Court''s decree on the question of damages, which leaves no further grievance to be
agitated in this regard before a higher tribunal.