Full Judgment Text
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PETITIONER:
BOMBAY GAS CO. LTD.
Vs.
RESPONDENT:
JAGAN NATH PANDURANG AND ORS.
DATE OF JUDGMENT22/03/1972
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
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)-Scope-
Appeals-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 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, 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
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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 thisview 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 work-
men 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.
JUDGMENT:
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
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Civil Miscellaneous Petition- No. 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,
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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 wag-
es 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 Re-
ference (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.
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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
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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
statment 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
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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 dis-
pute 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 over-
time 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/-
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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 th 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 upto 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
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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 over
time 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 judg-
ment. 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 upto the date of the judgment of the
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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. There-
fore, 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
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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 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/-.
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 addition- to or
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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 counsel 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 es
sentially
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
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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 Commis-
sioner 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
there 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).
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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 an other
(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
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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 tthe 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
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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.
948