Bombay Gas Co. Ltd. Vs. Jagan Nath
Pandurang & Ors [1972] INSC 93 (22 March 1972)
VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
DUA, I.D.
CITATION: 1972 AIR 2356 1972 SCR (3) 929 1972
SCC (2) 119
CITATOR INFO:
RF 1974 SC1495 (11)
ACT:
Constitution of India, 1950--Article
133(1)(b)-ScopeAppeals-Certificate to appeal to Supreme Court.
HEADNOTE:
In order to attract article 133(1)(b) the
essential requirement is that there must be involved in the appeal to this
Court a claim or question respecting property of the value of not less than Rs.
20,000/in addition to or other than the subject matter of the dispute; if there
is no question or claim raised respecting property other than the subject
matter, then, clause (a) of article 133 will apply.
Adding future interest or possible further
claims to the original value of the subject matter till the date of the
judgment of the High Court and which items are not the subject of consideration
by the High Court will not enable a party to plead that the claim so calculated
exceeds Rs.
20,000. [94O G] The respondent had filed
applications under the Payment of Wages Act 1948, claiming overtime wages for
the period 1957 to 1958 and wages for weekly off days for the period 1962 to
1963. Against the judgment of the High Court setting aside the order of the
appellate authority holding the claim as time barred, the appellants filled
appeal to this Court on the basis of a certificate issued by the High Court
under article 133(1)(b). In its application before the High Court the appellant
had prayed for the grant of a' certificate that the amount or value of the
subject matterbefore all the authorities, in the appeals, as well as in the
High Court and still in dispute in the proposed appeal to this Court was Rs.
20,000/and upwards, and, in the alternative on the ground that the case was fit
one for appeal to this Court. On the basis of the claims made by the workmen as
overtime wages and weakly off days wages for the particular periods, the
appellant had calculated at the same rate for subsequent periods till the
judgment of the High Court and claimed that the amount or value in dispute in
appeal to this Court was over Rs. 20,000/-. The appellant bad also urged that
it would have to meet in future also claims from its workmen and, as such, it
will have to face a recurring liability. On this basis the appellant had raised
the plea that the judgment of the High Court involved directly or in, directly
a claim or a question in respect of property of the value of Rs. 20,000/and
more.
The respondents moved this Court for
revocation of the Certificate. They urged that what weighed with the High Court
'for granting a certificate under article 133(1)(b) was the circumstance that
the nature of the demands by the workmen were such as they were recurring claim
arising in the future also and as such the final" judgment and order of
the High Court involved directly or indirectly a claim respecting property of
the value not less than Rs. 20,000/and that this view of the High Court was
erroneous'.
HELD :that the certificate issued by the High
Court under article 13,3(1)(b) was not proper and valid and hence the appeal
was unsustainable.
930 (i) The High Court has not given any
indication as to how it issued the certificate under article133(1)(b); it is
clear that it did not grant the certificate on the claim made by the appellant,
under clause (a) or clause (c) of article 133(1). [937 A] (ii) In view of the
fact that the High Court granted the certificate under article 133(1)(b), it
has to he presumed that it has accepted the appellant's plea that a certificate
could be granted under the clause when there is a recurring liability, which,
if calculated for subsequent years, will be Rs. 20,000/or more. [937 C-D] (iii)
But, the present case is not one where the decision of the High Court, apart
from dealing with the subject matter in dispute before it, has the effect of
affecting the rights of the appellant regarding other properties, including
money. The judgment of the High Court has only adjudicated upon the subject
matter of the specified claim of the workmen which was for a particular period.
The judgment does not involve directly or indirectly, apart from/the subject
matter of the writ petition, any claim or question respecting property or money
of the value of Rs. 2O,000/and more. The appellant was not entitled to
notionally add, to the amount originally claimed by the workmen for particular
periods any further amounts on the ground that they must be considered to have
accrued due to the workmen till the date of the judgment of the High Court.
[945 E, 946 E] Chaitarmal v. M/s. Pannalal Chandulal, [1965] 2 S.C.R. 751,
applied.
A. V. Subramania Ayyar v. Sellammal, I.L.R.
39 Madras 843, Meghji Lakhamshi and Brothers v. Furniture Workshop, [1954] Appeals
Cases 80; Smt. Rajah Kishore Devigaru v. Bhaskara Gouta Chorani and others,
A.I.R. 1960, A.P. 286, Commissioner of Income-tax, Madras v. S. L. Mathias,
A.I.R.
1938 Mad. 352; G. Appuswamy Chettiar and
another v. R. Sarangapani Chettiar and others, [1965] (1) I.L.R. Mad. 361 Moti
Chand and others v. Ganga Parshad Singh and another, 29 Indian Appeals 40 and
Surapati Roy and others v. Ram Narayan Mukherji and others, 50 I.A. 155,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 158 of 1968.
Appeal from the Judgment and Order dated
February 6, 1967 of the Bombay High Court in Special Civil Application No. 1987
of 1965.
WITH
Civil Miscellaneous PetitionNo. 1300 of 1972.
(Application by the Respondents for
revocation of certificate granted by the High Court.) Soli Sorabji, K. D.
Mehta, P. C. Bhartari and O. C. Mathur for the appellant.
M. C. Bhandare, Sunanda Bhandare and K.
Rajendra Chowdhary, for respondents Nos. 1, 2, 4, 5, 7, 8, 10, 12, 13, 95, 96,
98. 100, 101 to 104 and 108, The Judgment of
the Court was delivered by Vaidialingam, J. This appeal, on certificate, by the
Bombay Gas Co. Ltd., is directed against the judgment and order dated 931
February 6, 1967 of the Bombay High Court in Special Civil Application No. 1987
of 1965. The High Court set aside the decision of the Court of Small Causes,
Bombay, in Payment of Wages Appeals Nos. 162 and 163 of 1962 and remanded the
proceedings to the Additional Authority for calculating and awarding over-time
wages that may be due to the respondents Nos. 1 to 80 herein. The High Court
further reversed the decision of the Court of Small Causes, Bombay, in Payment
of Wages Appeal No. 61 of 1963 and restored the orders passed by the Third
Additional Authority in favour of the respondents Nos. 8 1 to 1 1 8 herein,
regarding their right to get wages for weekly off days. C.M.P. No. 1300 of 1972
is an application filed by the, respondents in the civil appeal for revoking
the certificate for leave to appeal to this Court granted by the High Court to
the appellant herein.
We will briefly state the circumstances under
which the appeal has come to this Court on certificate: The respondents Nos. 1
to 14 who were employed under the appellant as Syphon Pumpers filed on March 3,
1958 before the Additional Authority 14 applications under s. 15 of the Payment
of Wages Act (hereinafter to be referred as the Act) claiming over-time wages
for the period February 1957 to January, 1958. On the same date the respondents
Nos. 15 to 80, who were employed under the appellant as Mains workers filed
before the same Authority 66 applications claiming over-time wages for the same
period. The claim was substantially based under the provisions of the Bombay
Shops, and Establishments Act, 1948 (hereinafter to be referred as the
Establishments Act). The appellant raised two, grounds of defence: (a) The
claims were barred by the Award, Part II of the Industrial Tribunal, Bombay
dated March 30, 1950 in Reference (IT) No. 54 of 1949; and (b).
The applicants were not workmen covered by
the Establishments Act. On October 13, 1962, the Additional Authority held that
the Award, referred to, by the Company was no bar to the said employees
claiming over-time wages.
But the said Authority accepted the
contention of the Company that the applicants are not covered by the
Establishments Act, which gives them the benefit of weekly off days with wages
under s. 18(3). In this view the applications filed by the respondents Nos. 1
to 80 herein were dismissed. The said applicants filed before the Court of
Small Causes. Bombay, which was the Appellate Authority, Payment of Wages
Appeals Nos. 162 and 163 of 1962 challenging the decision dated October 13,
1962 of the Additional Authority, .dismissing their applications.
During the years 1962-63, the respondents
Nos. 81 to 118 herein, in the Civil Appeal filed 38 applications before the
Third Additional Authority under s. 15 of the Act claiming wages for weekly off
days. The said respondents were working in Mains, 932 Heating. Appliances. and
Fitting Departments of the appellant. Here again, the basis of the claim was
under the provisions of the Establishments Act. The appellant raised the same
two defences as in respect of the claim for overtime wages. The Third
Additional Authority, by it,$ judgment dated April 26, 1963, held that the
Award, Part II of the Industrial Tribunal, Bombay, dated March 30, 1950 in
Reference (IT) No, 54 of 1949 is no bar to entertain the applications of the
said employees. The said authority further held that the district office in
which the said applicants were employed is a "Commercial
Establishment" under the Establishments Act and as such they were entitled
to wages. for weekly off days under s. 18(3) of the said Act. Accordingly, the,
said authority directed the appellant to pay the amounts mentioned in the
judgment to respondents Nos. 81 to II 8 and also to pay certain amount by. way
of corn sensation. The appellant filed Payment ,of Wages Appeal No. 61 of 1963
before the Court of Small Causes, Bombay which. was the Appellate authority, challenging
the decision of the Third Additional Authority dated April 26, 1963 regarding
payment of wages for 'weekly off days.
All the three appeals, namely, Payment of
Wages Appeals;
Nos. 162 and 163 of 1962 relating to
over-time wages, filed by the respondents Nos. 1 to 80, and Payment of Wages
Appeal No. 61 of 1963 filed by the Company relating to wages for weekly off
days decreased to..respondents Nos. 81 to 118 were heard together and .disposed
of by a common judgment dated February 11, 1965 by the Appellate Authority, the
Court of S mall Causes, Bombay. It was held that the claims of all the workmen
for over-time wages and wages for weekly off days were barred by the Award,
Part II dated March 30, 1950 of the Industrial Tribunal, Bombay, in Reference
(IT) No. 54 of 1949 and that the. said award was still in force and binding on
the parties. Accordingly, the Payment of Wages Appeals Nos. 162 and 163 of 1962
were dismissed and Payment of Wages Appeal No. 61 of 1963 was allowed. The
result was, that the applications filed by the employees before the Additional
Authority and the Third Additional Authority stood dismissed.
It must however be stated that though the
Appellate Authority, .the Court of Small Causes, Bombay held that the claimes
of all the workmen both for overtime wages and weekly off days 'wages were
barred by the Award, nevertheless it also considered the question whether the
workmen are employed in a "Commercial Establishment so as to claim relief.
under the Establishments Act., The Appellate Authority held that the district
office, of the Company though situated,within the,, compound of the factory is
a "Commercial Establishment" under the Establishments Act.
Accordingly, the Court of Small Causes agreed
'With the finding of the Third 933 Additional Authority, that the workman were
governed by the provisions of the Establishments Act and as such are entitled
to the benefit conferred on them by that Act.
However, in view of the fact that the Claims
of all the workmen were held to be barred in view of the award in Reference
(IT) No. 54 of 1949, the workmen's appeals were dismissed and the appeal ,
filed by the company was allowed.
As stated earlier, the decision of the court
of small causes resulted in the dismissal of all the applications filed by the
workmen before both the Additional Authority and the Third Additional
Authority.
All the 118 workmen filed before the Bombay
High Court, Special Civil Application. No. 1987 of 1965 under Arts. 226 and 227
of the Constitution for quashing the judgment of the Court of Small Causes,
Bombay, dated February 11, 1965. By its judgment and order dated February 6,
1967, the High Court held that neither-the claim of the respondents Nos. 1 to
80 for over-time wages, nor the claim of the respondents Nos. 8 1 to 1 1 8 for
wages for weekly-off days was barred by the Award, Part 11, dated March 30,
1950 in Reference (IT) No. 54 of 1949. So far as the respondents Nos. 1 to 80
were concerned, the High Court has set aside the judgment of the Court of Small
Causes, Bombay, ;is well as the order dated October 13, 1962 of the Additional
Authority and remanded their applications to the latter for ascertaining and
decreasing the amount of over-time wages that may be due to them. Regarding the
respondents Nos. 8 1 to II 8 the High Court has set aside the judgment of the
Court of Small Causes, Bombay, and restored the order dated April 26, 1963 of
the Third Additional Authority recognising their claim for wages for weekly off
days.
It is seen from the judgment of the High Court
that the Company did not challenge the finding of the Court of Small Causes
that the workmen are employed in a "Commercial Establishment" and as
such are entitled to the benefits of the provisions of the Establishments Act.
The High Court has also stated that the reason given by the counsel appearing
for the Company for not challenging that finding was that it was not open to
the Company, which was I respondent in the writ petition to challenge the said
finding in those proceedings. Therefore the High Court has adjudicated upon the
only question whether the Award bars the claims of the workmen as held by the
Court of Small Causes. On this point, as pointed out earlier, the High Court
disagreed with the decision of the Court of Small Causes.
The appellant filed on April. 6, 1967 in the
High Court Application No. 869 of 1967 praying, for the grant of a certificate
of fitness to enable it, to appeal to this Court In the application of the
appellant, after setting out the nature of the applications filed before 934
the Additional and Third Additional Authorities, the amounts claimed by the
work-men, the decision of the said two Authorities as well as the judgment and
order of the Court of Small Causes, and the High Court, it was stated that the
amount or value of the subject matter before all the Authorities, in the
appeals, as well as in the High Court and still in dispute in the proposed
appeal to this Court, was Rs. 20,000 and upwards. It was further stated that in
any event the case is a fit one for appeal to this Court.
Accordingly, the appellant prayed for the
grant of a certificate that the amount or value of the subject matter in the
said Special Civil Application, applications before the Additional and Third
Additional Authorities, in the appeals before the Court of Small Causes and in
dispute in the proposed appeal to this Court was Rs. 20,000 and upwards or in
the alternative on the ground that the case is a fit one for appeal to this
Court.
It will be seen, that though the appellant
did not specify under which clause of Art. 133(1) the certificate was asked
for, nevertheless a perusal of the averments made in the petition and the
prayers made therein show that the appellant was asking for a certificate under
clauses (a) and, or (c) of Art. 133(1). The High Court after hearing all
parties, by its order dated October 19, 1967 directed a certificate to issue
under Art. 133(1)(b) of the Constitution. On .the basis of the said
certificate, the petition of appeal has been lodged by the appellant in this
Court on December 16, 1967.
The respondent ha; filed C.M.P. No. 1300 of
1972 requesting this Court to revoke the certificate granted to the appellant
by the High Court on October 19, 1967. If the certificate is revoked, that will
result in our holding that the appeal is not competent. Hence we will deal with
the application for revocation of the certificate.
In the affidavit filed in support of the
application for revocation, the following averments are made: The appeal refers
to two sets of claims which are separate and independent of each other one for
over-time wages and the other for wages for weekly off days. The applications
in respect of these two different claims were filed by the concerned workmen
before two different Authorities under the Act and were also disposed of
separately by those Authorities. Separate appeals were preferred before the
Court of Small Causes. Though a common judgment was delivered by the Court of
Small Causes, the two sets of claims have been dealt with independently and
separately in the judgment, as there were, separate and different appeals.
The claim for weekly off days wages comes
only to Rs. 6675 and that was the value of the subject matter before the Third
Additional Authority and in the appeal before the Court of Small Causes as well
as in the writ petition before the High Court. The same is the value of the
subject 935 matter of the appeal to this Court. The value of the subject matter
of the claim in respect of over-time wages was only Rs. 10660 before the
Additional Authority and in the appeals before the Court of Small Causes, in
the High Court, as well as in the appeal before this Court. The value of the
subject matter of neither of the two separate and distinct claims is Rs.
20,000; and even if both the claims are added, the value of the subject matter
is less than Rs. 20,000. It was, in view of this circumstance, that the High
Court did not grant a certificate under Art.133(1)(a). The High Court did not
consider the case as a fit one for appeal to this Court, and hence no
certificate was granted under Art.133(1)(c). What has weighed with the High
Court in granting a certificate under Art.133(1)(b) is the circumstance that
the nature of the demands made by the workmen were such that they are recurring
claims arising in the future also and as such the final judgment and order in
the writ petition involve directly or indirectly a claim respecting property of
the value of not less than Rs.
20,000. This view of the High Court is
erroneous and contrary to the decisions of this Court and as such the grant of'
certificate by the High Court is erroneous.
Along with the application, the respondents
have filed a statement to show that the value of the subject matter of the
claim regarding over-time wages does not exceed Rs. 10660.
At this stage it may be mentioned that
according to the appellant this schedule deals only with the claims made by the
Mains workers and it does not include the amount claimed by the 14 Syphon
Pumpers.
On behalf of the appellant, an affidavit has
been filed opposing the application for revocation of the certificate.
In this affidavit the averments made are as
follows : Though the appeal has been. pending in this Court for a considerable
time, the respondents have filed the application for revocation of the certificate
only when the appeal was about to be heard. It is pointed out that the
respondents opposed before the High Court the application for grant of
certificate on the ground that the aggregate of all claims put together amounts
only to Rs. 17678.80 P., and hence no certificate should be granted. The
appellant had filed a rejoinder giving details regarding the value of the
subject matter of the appeal to this Court. As per the particulars given
therein, the value of the subject matter of the entire claim in respect of
overtime wages, weekly off days wages and compensation is of the value of Rs.
26822.09.
Therefore, the amount or value of the subject
matter in dispute in the court of the first instance and still in dispute in
the appeal is Rs. 26822.09, which is well over the prescribed limit of Rs.
20,000. The claim for weekly off days wages at the rate claimed by the workmen
on the date of the judgment of the High Court, that is February 6, 1967 became
crystalised in, the aggregate amount of over Rs.
30,000. Similarly, the claim 936 for over.
time wages as a result, and effect of the judgment of the High Court, as on the
date of the decision in the writ petition, also exceeds the sum of Rs. 20,000.
The respondents raised a controversy regarding the amount or value of the
subject matter in dispute-before the High Court in application No. 869 of 1967.
But, inasmuch as the recurring claims of both weekly off days wages and
over-time was, at the time of the High Court's judgment in the writ petition on
February 6, 1967, had crystalised into amounts exceeding Rs. 20,000, the High
Court issued the certificate under Art.133(1)(b) and that the certificate so
issued under the said Article is perfectly valid.
We have set out fairly elaborately the claim
made by the respondents in C.M.P. No. 1300 of 1972 for revoking the certificate
granted by, the High court as well. As the defence pleaded by the appellant to
that application.
In its. application before the High Court,
the appellant did not specify tinder what clause of Art. 133 (1) the
certificate was prayed for. But from the material averments made by the
appellant in its application before the High Court for grant of certificate, it
is to be gathered that the prayer was substantially on the ground that the
amount or value of the subject matter of the applications before the Payment of
Wages Authorities, in the appeals before the Court of Small Causes, in the writ
petition before the High Court and still in dispute in the proposed appeal to
this Court was Rs. 20,0001/and upwards. This prayer will bring the application
under Art. 133(1) (a). In the alternative, the certificate was prayed for on
the ground that the case is fit one for appeal to this Court. This prayer will
come under Art. 133 (1) (c). The request of the appellant for grant of
certificate on the above basis was opposed by the respondents herein on the
ground that the amount or value of the subject matter before all the
Authorities, the Court of Small Causes, the High Court and in dispute in the
proposed appeal before this Court was far below Rs. 20,000/and as such the
matter does not come under Art. 133(1) (a). It was also averred that there was
no substantial question of law of any great importance arose for consideration
so as to attract Art. 133 (1) (c). After giving details regarding the nature of
the claims made by the workmen, both as overtime wages and weekly off days
wages, it was stated that the claim fell far short of the sum of Rs. 20,000/-.
As the High Court had only adjudicated upon that claim in the, writ petition,
the respondents pleaded that the judgment of the High Court does not involve
directly or indirectly any claim or question respecting property of the value
of Rs. 20,000/or more.
The High Court on October 19, 1967 granted
the certificate in the following terms "Certificate to issue under Art.
133 (1)(b) of the Constitution. Costs in the Supreme Court appeal." 937
From the above it will be seen that the High Court has not given any indication
as to how it issued the certificate under Art. 133(1)(b). But one thing is
clear that it did not grant the certificate on the basis of the claim made by
the appellant either 'under el. (a) or el. (c) of Art.
133(1). On the basis of the claims made by
the workmen as over-time wages and weekly off days *ages for the particular
periods, the appellant had calculated at the same rate for even subsequent
periods till the date of the judgment of the High Court and claimed that the
amount or value in dispute in appeal to this Court is over Rs. 26822.09 p. The
appellant had also raised a point in its further affidavit before, the High
Court that it will have to meet in future also claims from its workmen and as
such it will have to face a recurring liability. On this basis the appellant
has raised a plea that the judgment of the High Court involves directly or
indirectly a claim or question respecting property of the value of Rs. 20,000/and
more. In view of the fact that the High Court has granted the certificate under
Art. 133(1)(b), it has to be presumed that it has accepted the appellant's plea
that a certificate could be granted under the said clause when there is a
recurring liability, which, if calculated for subsequent years will be at least
Rs. 20,000/and more. The question is whether under circumstances the
certificate granted under Art. 1 3 3 (1) (b) by the High Court, is proper and
valid.
It is significant to note that in paragraph 7
of the petition of appeal filed in this Court, the, appellant has stated that
it is not possible to estimate at a money value the subject-,matter of dispute
in the appeal. Accordingly,, it has paid only a fixed, court fee Rs. 250/as per
the rules. In the claim statement filed by the appellant before the High Court,
if has stated that Rs. 6675.84 is claimed as weekly off wages by the
respondents Nos. 80 to 118 and a sum of Rs. 18221.25 is claimed by the
respondents Nos. 1, to 80 as over-time wages. These two different claims were
not consolidated before the Authorities because the claim for weekly off wages
was dealt with by the,-Third Additional Authority and the claim for over-time
wages was dealt with by the Additional Authority.
According to the Union the claim for
over-time wages does not exceed Rs. 1,0660/But it is not, necessary for us to
go further into this aspect as Art. 1-33(1)(a) is out of the picture.
The appellant, relying on the calculation
filed by it before the High Court has further stated in its affidavit dated
February 18, 1972, filed in opposition to the application for revocation, that,
on the basis of the claim for weekly off wages in the sum of Rs' 6675.84 p. for
one year, if calculated for the subsequent years Up to February 16, 1967 the,
date of the judgment of the High Court, 938 the amount will aggregate nearly
Rs. 30,000/-.
Similarly, in respect. of over-time wages, on
the basis of the claim made by the workmen, if. calculated up to February 6,
1967, the amount will exceed the sum of Rs. 20,000/-. It will be seen that if
the claims made, before each of the Authorities for the particular periods
alone are taken into account, the total claims will be less than Rs. 20,000/-.
It is really that claim which was the subject
of consideration by the High Court in the writ petition. Is it open to the
appellant to add to the original claim made by the workmen, the further amount
calculated by it till the date of the judgment of the High Court and establish
that as the total amount so arrived at is not less than Rs. 20,000/, Art.
133(1)(b) can be invoked on the ground that the judgment of the High Court
directly or indirectly involves a claim in respect of property of the value of
not less than Rs. 20,000 /? Even on the basis of the valuation worked out by
the appellant, it is seen that the claim for over-time wages which was filed
before the Additional Authority was valued only at Rs. 18221.25 p. as per the
amended claim at 1-1/2 times of wages, though according to the respondents the
amount of claim does not exceed Rs. 10660/-. Similarly, the claim for weekly
off wages filed by another set, of workmen before the Third Additional
Authority, even as per the appellant's calculation was only Rs. 6675.84 p. The
claim for over-time wages and weekly off wages, each of them takes separately
does not exceed Rs. 20,000/-. Though the appeals against the decision of the
two Authorities were filed before the Court of Small Causes, it is to be noted
that separate appeals were filed by different workmen and the appellant in
respect of these two different categories of claims. Though the Court of Small
Causes disposed of all the appeals by a common judgment, nevertheless the claim
in respect of over-time wages was dealt with apart and different from the claim
for weekly off wages. Even before the High Court, though one writ petition was
filed by all the workmen, the claims under two different heads for overtime
wages and weekly off wages were dealt with separately by the High Court. It is
not as if that the reasons given by the High Court for upholding the claims for
over-time wages automatically resulted in the allowing of the claim for-_weekly
off wages also. In fact entirely different considerations apply for the two
different sets of claims and that has been kept in view by the High Court.
Though, ultimately, the High Court has delivered only a common judgment, nevertheless
the decision related to two different sets of claims each having nothing in
common with the other.
Therefore, it was not open to the appellant
to ask this Court to proceed on the basis that there was only one single and
common claim dealt with by the High Court in its judgment. Therefore, there was
no question of any consolidation Of all the claims before the High Court. In
this view it will be seen 939 that even according to the calculations made by
the appellant, the value of the subject matter of the claim with respect to
over-time wages can only be the same as was before the Additional Authority,
namely, Rs. 18221.25 p.
which is less than Rs. 20,000/-. Similarly,
the amount or value of the claim which was adjudicated upon by the High Court
in respect of weekly off wages was also of the same value as Rs. 6675.84 p. as
was the case before the Third Additional Authority, which claim is also less
than Rs.
20,000/-. Therefore, considering the matter
from this point of view, it is clear that the value of the subject matter of
the claim before the High Court in respect of each of these matters was less
than Rs. 20,000/-.
The appellant, as mentioned earlier, has
calculated at the same rate as claimed for over-time wages and weekly wages,
for subsequent years up to the date of the judgment of the High Court and has
stated that so calculated the amount or value of the subject matter of the
claim relating to weekly off wages exceeds Rs. 30,000/-. Similarly, the amount
or value of the subject matter of the claim of over-time wages exceeds Rs.
20,000/and hence it is stated that the judgment of the High Court involves
directly or indirectly a claim or question respecting property of the value of
Rs.
20,000/and more.
Mr. M. C. Bhandare, learned counsel for the
respondents, in support of the application filed for revocation of the
certificate has urged that before the High Court there was no claim or question
arising for consideration excepting the subject matter of overtime wages and
weekly off wages claim for a particular period by the workmen. No claim for any
further period has been made by them; nor did it arise for consideration before
either the Authorities, the Court of Small Causes or the High Court. Nor does
such a claim arise for consideration in the appeal to this Court. Therefore, he
pointed out that the judgment of the High Court does not either directly or
indirectly involve any claim apart from what was the subject matter of dispute
between the parties. The High Court not having granted the certificate under
Art. 133(1)(a), it follows that the amount or value of the subject matter of
the dispute before it or on appeal to this Court was not Rs. 20,000/or above.
Clause (c) of Art. 133(1) also stands
excluded as the High Court has not granted the certificate on the ground that
the case is a fit one, for appeal to this Court, and as Mr.
Sorabji, learned counsel for the appellant,
has represented that he is not relying on that clause. In order to attract Art.
1 3 3 (1) (b), under which the certificate has been granted, the essential
requirement is that there must be involved in the appeal to this Court a, claim
or question respecting property of the value of not less than Rs.
20,000/in addition to or other than the
subject matter of the dispute. In this case this condition is not satisfied.
940 In support of the above proposition, Mr.
Bhandare, referred us to the decision of this Court in Chhitarmal v. M/s Shah
Pannalal Chandulal(1). It is laid down in that decision as follows "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 el. (a) what is decisive is the amount or value of the subject. matter in
the court of the 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 sought 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. 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, el. (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 el. (b) will apply." From the
facts stated in the above decision it is seen that the appellant therein
pleaded oil an alternative; basis that the claim in the appeal; exceeded Rs.
20,000/-. That alternative claim, was on the basis of adding interest at 6% per
annum to his original claim as awarded by the trial court whose decree he
wanted to be restored in the appeal.
That again was rejected on the ground that
the original claim of the appellant therein which formed the subject matter of
dispute before the trial court, was itself the subject of dispute in the appeal
and therefore by adding interest to the original claim, it was. not open to the
appellant to plead that the valuation in-the appeal exceeds Rs. 20,000/--.
From the decision, cited above, the following
principles emerge (1) In order to attract Art. 133(1)(b) the property
respecting which the claim or question arises, must be property in addition to
or other than the subject-matter of the dispute.
(2) If in the appeal to this Court there is
no question or claim raised 'respecting-the property other than the
subject-matter, then cl. (a) of Art. 133 ( 1) will apply.
941 (3) Adding future interest or possible
further claims to the original value of the subjectmatter till the date of the
judgment of the High Court, and which items are not the subject of
consideration by the High Court will not enable a party to plead that the claim
so calculated exceeds Rs. 20,000/-.
This is not permissible as the addition of
interest or calculation of further possible claims are all related only to the
original subject-matter, which is still in dispute.
In A. V. Subramania Ayyar v. Sellammal(1),
under s.110 of the Code of Civil Procedure it was pleaded that though the
Subject-matter of the dispute in the court of first instance was less, than Rs.
10,000/-, the final decree, of the High Court involved a claim to property of
over Rs. 10,000/in value. This value at the relevant time was for purposes of
appeal to the Judicial Committee of the Privy Council. The appellant added the
mesne profits, which according to him must be considered to have accrued
subsequent to the date of the original claim made in the suit. So adding, the
appellant therein pleaded that the decision of the High Court must be
considered as involving a claim to property of over Rs. 10,000/in value.
Though, if the amount of mesne profits was added the value was over Rs.
10,000/-, the High Court rejected the plea on the ground that the claim for
mesne profits has not been awarded by the decree, nor was it the subject matter
of dispute in, the appeal. It was further field that the decision of the High
Court has not affected the rights of the appellant 'therein in any property
other than the one that was the subject matter in dispute. In this view, it was
held that the judgment of the, High Court did not directly or indirectly
involve any question to any property other than the subject matter of dispute.
On this grounds certificates was refused.
Mr. Sorabji, learned counsel for the
appellant; accepted the principle that to attract Art. 133(1) (b)the property,
referred to therein, must be property in additionto or other than the subject
matter of the dispute. In fact, lie cannot but accept this principle as it has
been so laid down by this Court in Chhitarmal V. M/S Sheh Pannalal
Chandulal(2). The council did not rely on Art., 133 ( i)(a) or (e) for the
purpose of this appeal. He jointed out that as laid down by this Court in the
decision, referred to above, the expression "property" in Art.
133(1)(b) would also take in claims regarding money. He noticed out that the
appellant in this case is prejudiced by the judgment of the High Court as it
will have to face recurring liability in future at the hands of its workmen, on
the basis of the claims made by them is over time wages and weekly off wages.
It is that liability which the appellant will
have to face 1. I L.R. 39 Madras 843.
(2) [1965] 2 S.C.R. 751 --L1061 Sup CI/72 942
and which has been imposed upon it to its prejudice by the judgment of the High
Court, that is sought to be got rid of in the appeal to 'this Court. As the
recurring liability or claim will be more than Rs. 20,000/the matter squarely
falls under Art. 133(1)(b) and the certificate granted by the High Court is
correct. He further pointed out that it, is not necessary that the judgment of
the Court should directly involve other properties, including money. Clause (b)
of Art. 133(1) will be attracted even if the, judgment indirectly involves a
claim in respect of property or money of not thin Rs. 20,000/-. He referred us
to the decision in Meghji Lakhamshi and Brothers v. Furniture Workshop(1) where
the Judicial Committee had to construe Art. 3 (a) of the Eastern African
(Appeal to Privy Council) Order in Council.
1951. The latter part of this Article was as
follows "...... or where the appeal involves directly or indirectly some
claim or question to or respecting, property or some civil right amounting to
or of the said value or upwards." The Judicial Committee held that the
value referred to in the said Article must be looked, at from the point of view
of the appellant. It is no doubt true that the value has to be considered from
the point of view of the appellant. The property may also include money. But it
is essential under Art. 133(1)(b) that the claim must be in respect of property
or money which property or money must be different from the subject matter of
the litigation. Therefore, the decision of the Judicial Committee is no, (If
much assistance to the appellant.
Mr. Sorabji, then referred us to the decision
of the Full Bench of Andhra Pradesh High Court in Smt. Rajah Kishore v.
Bhaskara Gouta Chorani and others(2) Dealing with cls. (a) and (b) of Art. 133
(1) the High Court says "In our opinion, clause (b) of Art. 1 33(1) is intended
to meet a situation essentially different from that arising under clause (a).
Under clause (a) we have to look at the value
of the reliefs obtainable in the suit and in the appeal. Under clause (b) we
have to look at the effect of the judgment appealed against from the point of
view of the appellant. A thing, is said to be involved in another when it is a
necessary resultant of that other.
(Stroud's Judicial Dictionary). The matters
adjudicated upon in the judgment appealed from may have far reaching
consequences detrimental to the property of the appellant, although they were
not comprised in the cause of action (1) [1954] Appeal Cases 80.
(2) A. I. R. 1960 Al. P. 286.
943 of the plaintiff and cannot be regarded
as being "still in dispute" on appeal." From the facts in that
case it is clear that the High Court was dealing with the question whether the
decision of the High Court will have far reaching effect on the other
properties of the appellant therein, though those properties were not the
subject-matter of dispute in the appeal. This decision in fact emphasises quite
rightly that to attract cl. (b) of Art. 133(1) one has to look to the effect of
the judgment sought to be appealed against on other properties which are not the
subject matter of dispute and are not comprised as such in the litigation.
Similarly, the decision of the Madras High
Court in Commissioner of Income-tax Madras v. S. L. Mathias(1) is also of no
assistance to the appellant. The facts of the said decision show that the High
Court was of the view that there is a difference of opinion between the High
Courts on the effect of the Proviso 2 to S. 4(2) of the Income-tax Act, 1922.
The High Court was of the view that "there can be no doubt that +the question
involved is a substantial question of law", and on this basis granted a
certificate of fitness.
It is clear that the High Court granted the
certificate on the-ground that there was a substantial question of law involved
in the appeal and as such it was a fit one for appeal to the Judicial
Committee.
Mr. Sorabji then referred us to the decision
of the Madras High Court in G. Appuswamy Chettiar and another, v. R.Sarangapani
Chettiar and others ( 2) In that case the suit was for a declaratory relief
regarding the invalidity of the adoption of a particular person. 'The
certificate was asked for on the ground that the decision of the High Court
involves directly or indirectly a claim or question respecting property of the
value of Rs. 20.000/and more.
It was accepted by the High Court that if
leave to appeal was not granted to the petitioners therein, they will lose an
estate worth more than Rs. 68,000/though the estate itself was not directly
the, subject matter of dispute either in the trial court or the High Court. The
High Court further held that in a suit for a declaration of adoption a claim
made by the reversioners to the property cannot be considered to be too remote.
It is on this ground that the certificate was granted. It is clear from the
judgment of their High Court that the final decision of the High Court in that
case did affect the right's of the petitioners therein to properties of the
value of more than Rs.
68,000/-. It is on that basis that the
certificate was granted under Art. 133(1)(b).
In our opinion, the decisions relied on by
Mr. Sorabji do not support his contention that the certificate granted by the
High (1) A.I.R. 1938 Mad. 352 (2) (1965) (1) I.L.R. Mad. 361.
944 Court, in the case before us, under Art.
133(1)(b) is proper and valid. In fact the said decisions clearly bring out the
distinction between cls. (a) and (b) of Art. 133 (1) and they lay down that
only when the judgment or final order affects property which is not the subject
matter of the, litigation that Art. 133(1)(b) apply. Those decisions are in
conformity with the principles laid down by this Court in Chhitarmat v. M/s
Shah Pannalal Chandulal(1).
It is clear that interest, unless granted'by
the decree or the trial court, cannot be notionally added to inflate the value
of the claim in the appeal so as to make it appear that on the date of the
judgment of the High Court the value is not less than Rs. 20,000/-. On the same
principle, we have already pointed out that mesne profits, which have not been
decreed by the trial court, cannot be added to the original claim made in the
suit, so as to enable a party to.
plead that the value in the proposed appeal
on the date of the judgment of the High Court is more than Rs.20,000/-.
We may refer to the decision of the Judicial
Committee in Moti Chand and others v. Ganga Parshad Singh and another (2) where
interest awarded under the decree of the trial court was taken into account for
the purpose of considering the value in the appeal before the High Court. The
suit was for recovery of a certain amount together with interest.
The trial court passed a decree for Rs.
9496/-and awarded interest to the plaintiff at Rs. 570/per year on the decreed
amount until realisation. By the time the High Court's decree was made, the
amount at issue had reached to Rs. 10636/-with further contingent increment.
Under s. 596 of the old Civil Procedure Code, certificate was asked for from
the High Court for leave to appeal to the Judicial Committee. The High Court
declined to grant the certificate on the round that the amount or value of the
subject matter of the suit in the court of first instance was not Rs.10,000/as
required by the ,aid section. though the amount or value of the matter in
dispute on appeal to Her Majesty in Council was above Rs. 10,000/. No doubt,
this decision is not on the question'regarding matters covered by cl. (1) of
Art. 13'(1). But we, are only referring to this decision to show that interest
can be taken into account for the purpose of considering the value in an
appeal, provided the decree itself has awarded interest.
We may also refer to the decision of the
Judicial Committee in Surapati Roy & others v. Ram Narayan and Mukherji
& others(3). In that decision the question arose under s. 110 of the Code
of Civil Procedure 1908 regarding the validity of the certificate granted by
the High Court. Though the rent claimed in the suits was less than Rs. 10,000/the
High Court had granted a certificate of fitness on the ground that the value of
the subject matter (1) [1965] 2 S.C.R.751 (2) 29 Indian Appeals 40.
(3) 50 Indian Appeals 155.
945 was over Rs. 10,000/-. The objection
taken before the Judicial Committee regarding the validity of the certificate,
on the ground that the subject matter was below the appealable value was
rejected as follows :
"........ The subject matter in dispute
relates to a recurring liability and is in respect of a property considerably
above the appealable value. The certificate in the circumstances is quite in
order." It is to be noted that the liability which was being denied as due
to the landlord, by way of rent from the lands in question was in respect of
the properties in question and it was on that basis that the certificate was
held to be valid.
Both the above decisions of the Judicial
Committee have no application to the facts of the present case on hand. 'The
principle that a claim made by one party and resisted by another is ordinarily
the subject matter of the dispute in the trial court and continues to be the
subject matter in the Appellate Courts. In the case before us the claims for
over-time wages and weekly off wages before the Authorities were for a
specified period. The claims for the identical periods were the subject matter
in the appeals before the Court of Small Causes. The High Court had also to
consider the correctness of the decision of 'he Court of Small Causes regarding
the claims made by the workmen for the particular periods. The appellant was
not entitled to notionally add on to the amount originally claimed by the
workmen for particular periods, any further amounts on the ground that they
must be considered to have accrued due to the workmen till the date of the
judgement of the High Court. If the subsequence additions made to the original
claim are accepted as correct, then the position would be that if it is an
ordinary civil litigation, the subject, matter of the suit and its value would
vary with the length of time during which the suit may be pending in the
Courts. Such a position is not warranted by the provisions of Art. 133(1) as
laid down by this Court in Chhitarmal v. M/s Shah Pannnalal Chandulal(1). If in
the proposed appeal to this Court there is no claim or question raised
respecting property, other than the subject matter of dispute, clause (a) of
Article 133(1 ) will apply. That clause has no,, been invoked in this case by
the High Court.
It is not possible to accept the contention
of Mr. Sorabji that as the appellant will have to face from its workmen in
future claims similar to the one recognised by the High Court, there is
involved a claim or question in respect of property of the value of not less
than Rs. 20,000 /in addition to or other than the (1) [1965] 2 S.C.R.751 946
subject matter of appeal. In the first place, this contention proceeds on the
assumption that the judgment of the High Court directs talk appeal Lo pay in
future amounts not less than Rs. 20,000/-. This assumption is basically
erroneous, as there is no such direction given by the High Court. The payment
of wages as for over-time or weekly off days will depend upon several
circumstances.if over time work is not taken, then no payment need be made.If
over time work is taken for a lesser time, then the amount to be paid will also
be less.
In our opinion, this is not a case where the
decision of the High Court, apart from clearing with the subject matter in
dispute before it, has the effect of affecting the rights of the appellant
regarding other properties, including money. We may give an instance where a
final judgment may have an impact or affect properties, other than the subject
matter in dispute. In a suit for mandatory injunction directing a defendant to
vacate a land, the, subject matter of the suit may be only of the value of Rs.
1500/but the decree granted by the High Court may result in the defendant
therein being obliged to remove buildings worth more than Rs. 20,000/-. so as
to give vacant possession of the land in accordance with the decision of the
High Court. In such a case, though the value of the subject matter in dispute
before the High Court may be only Rs. 1500/-, the judgment, can be considered
to involve indirectly a claim or question respecting property (in this case the
buildings) of the value of no less than Rs. 20,000/-. Such a case may attract
Art. 133(1)(b). The position before us is entirely different. The judgment of
the High Court has only adjudicated upon the subject neither of the specified
claim of the workmen which was, as mentioned earlier, for a particular period.
That judgment does not involve directly or indirectly apart from the subject
matter of the writ petition, any claim or using respecting property or money of
the value of Rs. 20,000/and more. In this view, we are of the opinion that the
certificate granted by the High Court under Art. 133(1)(b) is not valid and
proper.
In the view that we take that the certificate
ranted by the High Court is not valid and that the appeal brought on such a
certificate is not sustainable, we do not express any opinion on the merits,
though arguments were heard on the same.
As the certificate issued by ,he High Court
under Art. 133 (1) (b) is not proper and valid, the only course oven to us is
to revoke the certificate and set aside the order of the High Court granting
the same. The result is, the appeal has become unsustainable, as it has been,
brought to this Court on a certificate which, as, held by us, has not been
properly and validly granted.
947 in the result, C.M.P. No. 1300 of 1972 is
allowed, and the appeal is held to be not maintainable and as such dismissed.
In C.M.P. N.-). 1300 of 1972 the respondents
will be entitled to costs., In the appeal there will be no order as to costs.
K.B.N. Appeal dismissed.
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