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TMI Blog1951 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, we must hold that the decision in regard to the non-admissibility of the documents is a sub-tantial question which would entitle the petitioner to have a certificate." With great respect to the learned Judges we cannot agree. If the judgment is correct, it will lead to this position. Suppose in an appeal a question of limitation is raised and though that question is disposed of in one way by the Judicial Committee, or the Supreme Court or by a Full Bench of a High Court, if that question of limitation affects substantially the rights of the parties, the High Court will be bound to give leave under Article 133 of the Constitution of India. In our view, the word "substantial" qualifies the expression "question of law" and not the subject-matter of the appeal. Unless a question of law is one of importance and difficulty or in regard to which there is a reasonable doubt or difference of opinion, it cannot be a substantial question of law within the meaning of the Article. 2. Mr Narasaraju relied upon the decision of the Judicial Committee in Raghunath Prasad Singh v. Deputy Commr. of Partabgarh, 2 Luck. 93, in support of his argument. But in that judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court to the Supreme Court, is the identical condition imposed in respect of an appeal to the Judicial Committee of the Privy Council under Section 110, Civil, P. C. (hereinafter referred to as the Code). This condition which is found in the Codes from 1877 onwards was for the first time introduced by the Privy Council Appeals Act No. VI of 1874. Section 5 which enacted that : "Where the decree appealed from affirms the decision of the Court immediately below the Court passing such decree the appeal must involve some substantial question of law." In the Code of 1877, Section 596 contained the corresponding provision in exactly similar terms. I may be not without interest to mention that the validity of this provision was attacked on the ground that it was ultra vires of the power of the Indian Legislature as being curtailment of the jurisdiction given to the High Court by the Letters Patent, but it was held not to be so (Vide in the matter of Feda Hossein and Co. 1 Cal 431). Section 596 of the Code of 1882 and Section 110 of the Code of 1908 merely reproduced the original provision except that in the Code of 1908 the words "or final order" were added af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Judges of the Chief Court of Oudh after pointing out that the only question of law arising was as to the true construction of a will said : "That, to our minds, is not a 'substantial question of law' though it is a question of law. It is not alleged that any recognised principle applicable to the construction of a document of the nature of the present will has been misunderstood or misused by this Court, nor does our decision lay down any general principle of construction. The construction which we have placed upon the will in question is of no interest to any person outside the parties to this litigation. The old Court of the Judicial Commissioner of Oudh, to which the Court has succeeded, consistently adhered to the view that the words 'substantial question of law' mean a question of general importance and do not include the construction of a document in which the parties alone are interested." 7. The learned Judges therefore dismissed the application for leave. There was then a petition for special leave to appeal in which their Lordships considered whether the matter fell within the last clause of Section 110 of the Code. Their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Narasaraju who appeared for the petitioner to argue for the contrary though probably that was his line of argument before the learned referring Jucges. Otherwise, the question would not have been framed as it has been. It may be argued that a question of law the decision of which materially affects the rights of the parties is a substantial question of law. If it is merely incidental and does not affect the merits in essentials, then it will not be a substantial question. This test is no doubt simple and easy to apply, but we do not think that this is the correet test. Logically this test would lead to the position that even a palpably absurd plea raised by a party would involve a substantial question of law simply because the decision on the merits of the case would be directly affected by it. We have also not come across any case in which this test has been adopted. But apparently the decision in Mahadeva Royal v. Chikka Royal 1942-1 M L. J. 309 was understood by the learned Judges who made the reference as accepting this test as correct. But before we deal with that decision, I think it will be useful to run over some of the decisions of this Court to find out how far the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uniform view taken by this Court. Apparently it was contended before the referring Judges that Mahadeva Royal v. Chikka Royal, 3942-1 M. L. J. 309, laid down a different test. In that case the only ground on which leave was granted was that a question was raised as to the correctness of the decision of this Court that certain material documents were inadmissible in evidence. Undoubtedly, these documents were of great importance and if they had been held to be admissible, they might have affected the result of the appeal. It was urged on behalf of the respondent that there were no merits whatever in the contention in regard to their admiasibility and therefore could not be a substantial question of law. The learned Judges then said : "We were of opinion that there was no substance in the contention advanced by the learned Advocate General; but if the words substantial questions' are to be understood in their being of substance to the parties we must hold that the decision in regard to the non-admissibility of the documents is a substantial question which would entitle the petitioner to have a certificate." I must confess that I find it difficult to exastly comprehend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length, and discuss alternative views which can be taken on the point, then, I think such a question would be a substantial question. When a point of law is practically covered by a decision of the highest authority Court, say, like the Privy Council or the Supreme Court, then it would not be a substantial question. If the general principles to be applied in determining a question are well settled a mere application of such principles would not involve a substantial question of law. I am inclined to hold that when a particular set of facts can lead to alternative findings in law, then, a substantial question of law would be involved. If the principle to be applied or the point of law arising in the case is not well established, then certainly that would be a substantial question of law. With great respect to the learned Judges who appear to hold to the contrary, I am of opinion that if there is conflict of judicial opinion among the High Courts and there is no direct decision of the highest Court on any question of law, then that would be a substantial question of law, though the decisions of the particular High Courts of which leave is sought might have been uniform on the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular form of words in which the said transfer was couched." This principle has been laid down by the Privy Council in Hanuman Persand Pandey v. Mt. Babooee Munraj Kunwaree, 6 M. I. A. 393. After going through the entire document we held that the words used therein were of sufficient amplitude to convey the properties to the trustees. The circumstances mentioned by us in our judgment, according to us, clearly indicated that there was a transfer. We did not feel any reasonable doubt on the question that arose for consideration. The fact that we dealt with the question at some length does not show that the question argued before us was either important or difficult, or was one in regard to which we felt a reasonable doubt. Indeed, we dealt with the question at some length in order to meet the arguments advanced before us. 16. It is then argued by Mr. Narasaraju that another substantial question of law arises in the case, namely, whether the decree in O. S. No. 4 of 1940 on the file of the Sub-Court, Rajahmendrawaram, would operate as res judicata. It is true that in formulating the points argued before us, we stated that as one of the question that arose for consideration; b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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