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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 139 of 155)
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estate could alienate a part of it, reference was made to Raiii Sartaj
Kuari v. Rani Deoraj Kuari (4), Uddoy Adittya Deb v. Jadub Lai Adittya
Deb (5).

As to the question of placing a reasonable construction on the contract,
reference was made to Gunga Pershad Sahu v. Maharani Bibi (6), Ram

(1)11 A. 118. (2) 11 A. 57. (3) 1H.A.149 = 7 A. 1.

(4) 15 I,A. 51 = 10 A, 272, (5) 5 0. 113. (6) 12 LA, 47 = 11 C. 379.

944



YII] RAJA MOHKAM SINGH V. RAJA RUP SINGH 13 All. 356

Coomar Coondoo v. Chunder Canto Mookerjee (1). Fischer v. Kamala Naicker 1893
(2), Baja Rup Singh v. Rani Baisni and the Collector of Etawah (3). APHID 28.

The respondent did not appear.

Their Lordships' judgment on a subsequent day was delivered by SIR PRIVY
R. COUCH. COUNCIL.

JUDGMENT. a m

The respondent is the younger and only brother of Mohendra Singh, (P.C,) =
Rais of the ancient impartible estate of Bhara or Bhauri, who died in 20 I, A, 127 =
September 1871 without leaving a son, but leaving a widow, Rani Baisni, 6 Sar. P.O.J
who took possession of and held her husband's estate under an alleged 327 = 17 Ind.
title as widow. The respondent instituted a suit against her in the Court Jut. 876.
of the Subordinate Judge of Mainpuri to recover possession of the estate
as impartible and descending to him under the ancient usage of the family,
contending that after the decease of a Raja of Bhara, his nearest and
eldest male heir succeeds him to the exclusion of the other male heirs
and the total exclusion of women. The suit was dismissed by the first
Court on the 25th of September 1878, and the respondent's appeal to
the High Court at Allahabad was dismissed on the 7th of May 1880.

On the 13fch of March 1882 an instrument of sale upon which the
question in this appeal arises, was executed by the respondent. It
[356] recites the institution of the suit against the widow, its dismissal,
and the dismissal of the appeal, and proceeds is as follows :

" Thus arose the necessity for filing an appeal to the Privy Council.
It is clear I have not a pice and my only hope for justice lies in an apoeal
to the Privy Council. I have therefore with entreaties got Raja Loke
Indar Singh (since deceased and now represented by the appellant Raja
Mohkam Singh), Sheikh Nasrat Hussain (Lala Bhikhari Das, Munshi Har
Narain), Bibi Ghunni Kuar and Kuar Dharam Singh persons belonging to
the first class given below feo consent that they should meet the costs of
the Privy Council including security by way of a help to me and should,
in lieu thereof, be the proprietor of an eighth share of the property involved
in the case with thei exception of those articles. They have accepted the
proposal, and deposited the security and the translation fees, and have
undertaken to pay the other expenses of the Privy Council appeal." The
respondent then by the deed sold an eighth share in the Bhara estate
and of outstanding debts due to the estate, amounting to Rs. 64,155 to the
persons before named ; and it is stated that the consideration for the sale
was Ra. 12,500, the estimated cost of the Privy Council Appeal, consisting
of Rs. 4,000 for the security of the Privy Council costs, and Rs. 8,500 for
the translation of papers, the pleader's fee, and other expenses of every
sort in the said department.

The appeal to Her Majesty in Council was successful. The decrees
of both the Lower Courts were reversed, and it was decreed that the
plaintiff (the present respondent) should recover possession of the estate
(L. R., 11 I. A. 149). OQ the 13bh of August 1884 he was put in posses-
sion of it, and having refused to give to the purchasers any part of the
eighth share, a suit was on the 31st of July 1885 brought against him to
recover it.

The plaintiffs had, on the 31st of January 1881, deposited in the
High Court their security bond for the costs of the appeal, and they
afterwards advanced for the costs of translation and remittance to England
the sums of Rs. 783, Rs. 7,759. and Rs. 2.0QO.

(1) 4 LA. 23 = 20. 233. (2) 8 M.I.A. 170. (3) 11 I.A. 149=7 A. 1.

945
A VII 119



IS All. 357 INDIAN DECISIONS, NEW SERIES [Yfll.

[357] The law applicable to the case is stated in the judgment of this
Board in Ram Coomar- Coondoo v. Chunder Canto Mookerjee (1). " Their
Lordships think it may properly ba inferred from the decisions . above
PRIVY referred to, and especially those of this tribunal, that a fair agreement to
COUNCIL, supply funds to carry on a suit in consideration of having a share of
the property, if recovered, ought not be to regarded as being, per se, opposed
13 A. 352 fj p u bii c policy. Indeed, cases may be easily supposed in which it would
be in furtherance of right and justice, and necessary to resist; oppression,
20 I. A. 127= that a suitor, who had a just title to property, and no means except the
6 Bar. P.O. J. property itself, should be assisted in this manner. But> agreements of
327 = 17 Ind. this kind ought to be carefully watched, and when found to ba extor-
Jur. 376. tionate and unconscionable, so as to be inequitable against the party, or to
be made, not with the bona fide object of assisting a claim believed to
be just, and of obtaining a reasonable recompense therefor, but for
improper objects, as for the purpose of gambling in litigation, or of injur-
ing or oppressing others by abetting and encouraging unrighteous suit, so
as to be contrary to public policy, effect ought not to be given to them."
The latter part of this passage is not applicable to the present case.
The question is whether the agreement; was so extortionate and uncons-
cionable as to be inequitable against the respondent. The Subordinate
Judge dismissed the suit. He held the sale not to be equitable and just,
but he gave other reasons for dismissing the suit which cannot be
considered satisfactory. He says : " It was by no means becoming of
the plaintiffs who had made him (the respondent) a Raja to have now
joined together in bringing him down from the dignity of a Rija to the
state of a subject, and themselves becoming the Rajas at bis expense."
And he appsars to have thought the impartibilicy of the estate to
be an answer to the plaintiffs' claim, for he says : " Thus, if the
plaintiffs' claim, were to be decreed now, it would necessitate a partition
of the eighth part of the estate to be awarded to them, who might be called
Rajahs or Mabarajas thereof. But this would ba altogether against the
[358] intent of the Privy Council ruling, and it would be as if it were
cancelling the said ruling." In fact this judgment appears to their
Lordships to be founded, partly at least, on reasons which are in-
applicable to the question. The High Court on appeal reversed the
decree of the Subordinate Judge and decreed that the plaintiffs should
recover from the respondent Rs. 1,588 interest on the amount of
the security bonds at the rate of 12 per cent, per annum from the
date when they were deposited in Court until the allowance of the
appeal by Her Majesty in Council; Rs. 691 expenses of translation
and printing, and Rs. 990-13 4 interest thereon at 20 percent, per annum ;
Rs. 92 also on account of translation and Rs. 106-14-4 interest thereon
from the 22nd of September 1882 to the 12th of July 1888, the date of ita
decree; Rs. 4,759 money advanced, and Rg. 4,711-6-6 interest thereon at
20 per cent, to the same date ; Rs. 2,000 advanced for the purposes of
review and Rs. 1,447-5-6 interest thereon, with costs in the High Court
and Court below amounting in the aggregate to Rs. 19.448-12-8. In
their judgment the High Court say that after the appeal in the former suit
from the Court of the Subordinate Judge had been dismissed, the respon-
dent was without any means, and unless he obtained assistance on such
security as 'he could offer he could not have filed or prosecuted bis appeal
to the Privy Council ; that the plaintiffs did not press him to accept the

(1) 1 1. A. 23.
946



YII] MANSAB ALI V. NIHAL CHAND IS All, 359

terms contained in the deed. After giving their reasons for making the 1893
above decree, which are generally that the plaintiffs were not professional APRIL 23.
money-lenders who had taken advantage of the position of the defendant,
and had not volunteered their assistance to promote litigation, they say : PP.IVY
" In this case, judging by the disproportion between the liability, which COUNCIL,
the plaintiffs incurred under the contract, and the amount of the reward
which they were to obtain in the event of the defendant succeeding in the " * ^^
Privy Council, we are compelled to conclude either that the plaintiffs did P C.) =
nob believe that the defendant's claim in the action was well founded and 2 ** '* * 2 7 =
consequently entered, although unwillingly, into a gambling transaction, or 6 ^ar. P C.J.
that, if they did believe that his claim was well founded, then the reward 327 = 17 I Q <*
which, under t.heir contract, they were to obtain, was excessive and uncon- " ur * ^76.
scionable. [359] In either event we could not enforce bis contract in its
terms." The more favourable view for the plaintiffs is that they believed
the claim to be well founded. Their Lordships adopt this, and think that
the question whether the deed is contrary to public policy does not arise.
They concider the finding of the High Court to be that the reward is ex-
cessive and uncoosionable. It is evident from their judgment that they
felt constrained to come to this conclusion, Tney say : " We confess
that in this case our sympathies are entirely with the plaintiffs, and we do
not refuse to decree their claim for possession of the share out of any
sympathy for the defendant." A decision thus arrived at ought not to be
set aside on appeal unless it clearly appears to be wrong, and their Lord-
ships having heard all that the learned Counsel for the appellants could
urge against the decree of the High Court are unable to say that they
think that it is wrong. They will therefore humbly advise Her Majesty
to affirm it, and to dismiss the appeal.

Appeal dismissed.
Solicitors for the appellant : Messrs. Barrow and Rogers.



15 A. 359 = 13 A.W.N. (1891) 113.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman.



MANSAB ALI (Plaintiff) v. NIHAL CHAND AND OTHERS (Defendants).*

Ll6bh May, 1893.J

Letters Patent, s. 10 Civil Procedure Code, ss. 2, 556, 558, 587, 598, 633 Appeal,
dismissal of, for default "Order" "Decree."

No appeal will lie under s. 10 of the Letters Patent from the order of a single
Judge of the High Court dismising an appeal for default.

The decision of a Court dismissing a suit or an appoal for default is an "order"
and no* a " decree." Nand Bam v. Muhammad Bakhsh (1), Mukhi v. Fakir i2),
Dhan Singh v. Basant Singh (3), Clnnd Kour v. Partab Singh (4), Muhimmad
Naim-ullah Khan v. Ishan-ullah Khan (5), cited. Bam Chandra Pandurang
Naik v. Madhav Purushottim Naik (6), not followed.

[R., 23 C. 827 (828) ; 28 C. 81 (84) ; 32 M- 221 (222) ; 15 A.W.N. 140 ; 10 O.P.L. 32 ;
4 L B.R. 17 ; 5 O.C. 291 (296) ; 121 P.R. 1907 = 61 P.W.R. 1907 tF.B),]



* Appeal No. 3 of 1892 under s. 10 of the Ladders Patent.

(1) 2 A. 616. (2) 3 A. 382. (3) 8 A. 519.

(4) 16 C. 98. (5) 14 A. 226. (6) 16 B. 23.

947



10 All. 360



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

MAT 16.

APPEL-
LATE
CIVIL.

IB I. 359 =
18 A.W N,
(1893) 113.



[360] THE facts of this case sufficiently appear from the judgment of
the Court.

Babu Jogindro Nath Chaudhri, for the appellant.
Pandit Sundar Lai, for the respondents.

JUDGMENT.

EDGE, C.J., and AIKMAN, J. This appeal is brought by the
plaintiff under s. 10 of the Latters Patent from an order of the 4th of
November, 1891, of our brother Mahmood dismissing the plaintiff's appeal
to this Court for default. It is a hard case, but we must be careful not
to depart from the correct interpretation of the law on account of the
hardness of the case. The appeal which was dismissed was a second
appeal in which the amount or value of the subject-matter exceeded one
hundred rupees. It was consequently an appeal which our brother
Mahmood sitting alone had no jurisdiction to hear and dispose of. His
jurisdiction in that respect was limited by Kule I of the Rules of the 30bh
of November 1889. Kule I was, so far as it applies in this case, made
under s. 13 of the 24 and 25 Victoria, C. 104 ; s. 652 of Act No. XIV of
1882. Further, the appeal, even if it had been one which he had jurisdic-
tion to bear and dispose of, was put in the list of the 4th of November
1891, " for orders " and not for hearing, and it has been the practice of
this Court not to dispose of, by way of dismissing or allowing, an appeal
which is simply put up " for orders," unless the parties are ready for
hearing and are willing that the appeal should be disposed of. Tbe 4th
of November 1891, was the day which had been fixed for the hearing in the
notice which had been issued to the respondents, but the appeal as a
matter of fact, as appears by the office report, which had been made on
the morning of the 4th of November 1891, and which was before our
brother Mahmood, was not on that day ripe for hearing. Our brother
Mahmood, who was the Judge taking applications on the 4th of November
1891, and before whom and in whose list this appeal appeared for orders,
must have overlooked the fact that he had no jurisdiction to hear and
dispose of the appeal. He must also have overlooked the fact that
the appeal had merely been put up for orders. When the appeal
was called on on the 4th of November 1891, no one appeared to
[361] support or to oppose. Our brother Mahmood, having sole regard
to the fact that the 4th of November 1891, was the day fixed for the
hearing, dismissed the appeal for default. Pandit Sundo.r Lai for the
respondents has contended that this appeal does not lie. He has contend-
ed that the order which our brother Mahmood passed on the 4th of
November, 1891, was not a decree as it is defined in s. 2 of the Code of
Civil Procedure. He has relied on the cases of Nand Ram v. Muhammad
Bakhsh (1), Mukhi v. Fakir (2), Dhan Singh v. Basant Singh (3) as show-
ing that the order for dismissal in default was not a decree but an order.
He contends that we should follow the ruling of this Court rather than
the ruling in Ram Chandra Pandurang Naik v. Madhav Purushottam
Naik (4). In support of his contention he also relied on the decision of
the Privy Council in Chand Kour v. Partab Singh (5) in which it was held
that a dismissal of a suit for default could not operate under s. 13 of the
Code of Civil Procedure as res judicata. He has also relied upon an un-
reported decision of their Lordships of the Privy Council in the case of
Maharaja, Badha Prasad Singh v. Lai Sahab Bai delivered on the 12th of



(1) 2 A. 616. (2) 3 A. 382.



(3) 8 A. 519.
948



(4) 16 B, 23. (5) 16 C. 98.



MANSAB ALI V. NIHAL CHAND



15 All. 363



July 1890, in appeal from this Court, was which to the effect that the
dismissal of a suit for default of prosecution could not operate as res
judicata. We have very great respect for the decision of the High Court
of Bombay : still in our opinion an order dismissing a suit or appeal in
default is an order and not a decree, as those terms are defined in the
Code of Civil Procedure. A dismissal in default is not " the formal
expression of aq adjudication upon any right claimed or defence set up "
within the meaning of s. 2 of the Code of Civil Procedure. Indeed it
would necessarily follow from the two decisions of their Lordships of
the Privy Council to which we have referred that an order dismissing a
suit or appeal for default could not ba treated as " a formal expression
of an adjudication upon any right claimed or defence set up." That view
is also supported by a consideration of s. 540 of the Code of Civil Proce-
[362]dure. Prior to Act No. VII of 1888, doubts had been entertained
whether an appeal lay under s. 540 of the Code of Civil Procedure from an
original decree passed ex parte. In s. 540, as amended by s. 45 of Act
No. VII of 1888, the following words were inserted as part of that sec-
tion : " An appeal may lia from an original decree passed ex parte." Ifc
will be noticed that in Chapter VII, which provides for the dismissal of
suits- in default, and also provides in certain cases for decrees passed ex
parte, the Legislature has not treated the passing of an order of dismissal
for default; as a decree passed ex parte, and further it may be noticed thafc
where a decree is passed ex parte it is a decree which is founded either on
admission or evidence. Therefore it can be treated as a formal expression
of an adjudication upon a right claimed or defence set up as the case may
be. In the case of a dismissal under s. 557, that section shows that it is
an " order " and not a " decree " which is made.

We are of opinion that a dismissal of a suit or of an appeal for
default is by an order and not by a decree. By s. 632 it is enacted that
"except as provided in this Chapter the provisions of this Code apply to
such High Courts." The Chapter is Chapter XLVIII, and this is one of
the High Courts to which that Chapter applies. S. 556 read with s. 587
provided the Procedure which our brother Mahmood no doubt applied in
this case. We must treat the order which he made as an order made
under s. 556 of the Code. It has been held by a Full Bench of this Court
in Muhammad Naim-uliah Khan v. Ihsan-ullah Khan (1), that s. 588 of
the Code of Civil Procedure limits the application of s. 10 of the Letters
Patent in appeals from orders made under the Code of Civil Procedure.
An appeal from this particular order of our brother Mahmood is excluded
by s. 588 of the Code of Civil Procedure, and whilst no appeal is given
from an order under s. 556 of the Code, an appellant whose appaal has
been dismissed under s. 556 is given a remedy under s. 558, the
remedy being an application to the Court for the readmission of
the appeal. He is given a further remedy, should the Court refuse
to readmit his appeal. An appeal lies against an [363] order of refusal
under 9. 588, cl. 27. Consequently an appellant in such a case is not with-
out a remedy. Mr. Ghaudhri, for the appellant, contended that there
was no such remedy open to his client in this case, as our brother
Mahmood, having had no jurisdiction to hear and dispose of the
appeal, would have no jurisdiction to set aside his own order and readmit
the appeal. We need not decide that point, for if our brother Mahmood
had no jurisdiction to entertain an application in this case uuder s. 558

(1) 14 A. 226,
949



1893

MAY 16,

APPEL-
LATE
CIVIL.

15 A. 339 =>

13 &.W.N.
1893) 113.



15 All. 36*



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

MAY 16.

APPEL-
LATE
CIVIL.

13 A. 359 =
13 A.W.N.
(1893) 113.



of the Code, it is quite clear to us that he could have entertained an appli-
cation for review of judgment under s. 623 of the Code of Civil Procedure,
and if he had granted the application for review, ay it is probable he would
have done, he could have ordered that the appeal be heard by a Banch of
two Judges who bad jurisdiction to hear it. Having come to the conclusion
that the order of the 4th of November 1891 was an order and not a decree,
and that, whether our brother Mabmood had jurisdiction or not to make it,
it is in fact made under s. 556 of the Code, we are bouncTto.hold that this
appeal does not lie. We accordingly dismiss it. As this appeal has arisen
out of an unfortuaate oversight on the part of our brother Muhmoodof
two matters which excluded his jurisdiction on that day, we dismiss the
appeal, but without costs.

Appeal dismissed.
[See also Pohkar Singh v. Gopal Singh, Weekly Notes, 1892, p, 50 ED.]



15 A. 363-13 A.W N. (1893) 148.

APPELLATE CIVIL.

Before Mr. Justice Knox and Mr. Justice BurJcitt.



EADHA PRASAD SINGH (Plaintiff) v. PATHAN OJAH AND ANOTHER
(Defendants)* [16th May, 1893. J

Act XII of 1881 (N.W.P. Rent Act), ss. 93, cl. (7z), 189 Act 1 cf 1887 {General Clauses
A ti, s. 3, cl, (13) Valuation of suhj set-mater of suit Appeal valued for puipjses-
of jurisdiction at a higher amount thai the suit,

Where a pl*intifl in a suit under s, 93 of the N.W.P. Rent Aot valued his suit
at Rs. 46a, which valuation was not objected to either by the defendant or the
Court, and subsequently, being defeated in his suit, preferred an appeal which ha
valued at a very much greater amount. Held, [364] that he must be bound by
the valuation put by him upon his suit and could not by alleging a greatly
enhanoed value obtain an appeal which would not h*ve lain on the valuation
stated in the plaint. Ram Raj Tewari v. Girnandan Bhagat (1), distinguished ;
Mahabir SingJi v. Bthari Lai (2), referred to,

[R., U.B.R. (19021903), Vol. II, Court Fees, p. 1.]

THE facta of this case sufficiently appear from the judgment of the
Court.

Mr. A. H. S. Reid, for the appellant.
Mr. Abdul Majid, for the respondents.

JUDGMENT.

KNOX and BURKITT, JJ. The suit out of which this second appeal
arises was a suit for ejectment of the respondents who were tenants afc
fixed rates of the appellant and was laid under s. 93, cl. (k) of the N.W.P.
Rent Act. In his plaint the appellant says in distinct terms : " The rent
of one year of the land claimed is Es. 46-3, which is the sum at which the
suit has been valued." The claim was rejected by the Court of first in-
stance, and in the memorandum of appeal the appellant entered a plea in



* Second Appeal No. 1049 of 1890 from a decree of H. W. Reynolds, Esq., Addi-
tional Judge of Ghazipur, dated the 16th June 1890, confirming a decree of Maulvi
Muhammad Wasi, Deputy Collector of Ballia, dated the 30th September 1889.

(1) 15 A, 63 = 12 A.W.N. (1892) 240. (2) 13 A. 320 = 11 A.W.N. (1891) 107.

950



YII]



BADHA PRASAD SINGH V. PATHAN OJAH 15 All. 365



different terms, bub in terms quite as distinctly stated as those in his
plaint;, to the effect tba* - the value of the disputed property was Rs. 875.
The lower aopellite Court held thafe, as the appellant himself rightly or
wrongly valued his suiS at Rs. 46-3, ha could not now alter that value,
and it therefore held that no appeal lay to it. It is now contended
before us that the District Judge erred in so holding ; that the value for
the purpose of jurisdiction is the reil valua of the subject-matter in
dispute, and not the value which was stated by the appellant in the plaint
solely for the purposes of the Court Fees Act. In support of this conten-
tion our attention was directed to the case Bam Raj Tewari v. Girnandan
Bhagat (1), and we were asked to remand the case for an inquiry as to
what was the real value of the subject-matter in dispute. Now s. 189
of the North- Western Provinces Rent Act of 1881 provides that an
appeal shall lie to the District Judge from the decision of certain Courts
in all suits mentioned in s. 93 in which inter alia, the amount or value of
the subject-matter exceeds Rs. 100. There is abundant authority as to
the meaning which saoiild be assigned to the words " amount or value
of the subject-matter. " The interpretation they should bear is that
[365] assigned to the word " value " in s. 3, cl. (13) of Act I of 1887 (Gen-
eral Clauses Act, 1887). In that Act " value " used with reference to a
suit means " the amount or value of the subject-matter of the suit." This
Court has already beld in fine case of Mahabir Singh v. Behari Lzl (2),
that for the purposes of determining the proper appellate Court in a civil
case the valua of the subject-matter of the suit must be the value assigned
by the plaintiff in his plaint and not the value as found by the Court,
fraud or negligence excepted. As regards the precedent quoted, Earn Raj
Tewari v. Girnandan Bkagat (2), .we fully agree that the principle laid
down for the valuation of suits to eject tenants at fixed rates is the correct
one, and we should follow that principle in this case if we could arrive at
the stage when it would become necessary for us to determine what the
value o? the subject-matter was. In. this case, as the appellant had in his
"plaint himself put a value on the relief he asked for, and as that value was
not questioned by the other side and was accepted by the Court of first
instance we are not ia a position now to entertain the question as to
whether it was or was not the correct value of that subject-matter. We
may add that we have consulted the learned Judges who gave the decision in
the case of Ram Raj Tewari v. Girnandan Bhagat(\] t and we are authorized
by them to say that the question as the value stated in the plaint being



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 139 of 155)