Mohun Lall Sookul v. Bebee Doss
BS648845
PRIVY COUNCIL
Before:-Members of the Judicial Committee - The Right Hon. Lord Kingsdown, the Right Hon. The Lord Justice Knight Bruce, The Right Hon. Sir Edward Ryan and the Right Hon. The Lord Justice Turner, Assessors - The Right Hon. Sir Lawrence Peel and the Right Hon. Sir James W. Colvile.
0 D/d.
14.06.1861
Mohun Lall Sookul and Anr. - Appellants
Versus
Bebee Doss and Ors. - Respondent
On petition from the Sudder Dewanny Adawlut, Calcutta.
For the Appellants :- Mr. Leith, opposed.
Beng. Reg. X of 1829 (Stamps) - Test of value of suit property - Selling or market value - Leave to appeal, Grant of, upon exports application therefor - Omission from petition for such leave of material facts about true value of property - Cancellation of leave - Costs of such ex parte application generally on petitioner - Respondent's laches in applying for cancellation of leave - No Costs.
[Para ]
By Ben. Reg. X of 1829, the lest of the value of the property in suit is the selling, or market value.
An Order in Council made upon an ex parte application granting special leave to appeal upon an allegation as to the value of the property in dispute rescinded, there being omissions in the petition, of proceedings in the suit, which showed the true value of the property.
In ordinary circumstances, an Order in Council obtained upon an ex parte petition, which omitted to state the true facts, will be discharged with coats, but if there has been laches in applying to discharge the Order on the part of the Respondent, no costs will be given.
In this special leave to appeal had been granted upon an ex parte application of the Appellants (a), upon an allegation as to the value of the subject matter in dispute in the suit.
(a) 7 Moore's Ind. App. Cases 428
A petition was now presented by the Respondents to rescind the Order in Council granting leave to appeal, alleging, that in the petition for leave to appeal, several important omissions had been made, namely, first that the answer of the Respondents to the plaint, whereby the question at issue, whether by Ben. Reg. X. of 1829, the value of the subject matter was to be computed according to the real or market value, had been omitted; and, secondly that a supplementary plaint filed by the Appellants, which stated that the suit had by mistake been valued at three times the Sudder jumma instead of Rs. 4,300, the real or market value of the property had also been omitted. The petition further alleged, that throughout the proceedings it was treated by the Appellants as a case regarding mortgaged premises, valued at Rs. 4,300; that the Respondents had applied to the Sudder Dewanny Adawlut at Calcutta, and to the Officiating Judge of Chittagong, to whom the enquiry had been by the Order in Council delegated, to give evidence of the value, but that such application had been refused by that Court, upon the ground that by the Order in Council, evidence of that fact was to be supplied by the Appellants, and the petition prayed, that the Order in Council granting leave to appeal might be rescinded, or that an Order might be made, directing an enquiry as to the real or market value of the property in dispute.
Mr. W. Field, in support of the application, cited Ben. Reg. X of 1829, Schedule B, 8.
JUDGMENT
The Right Hon. Lord Kingsdown :- This is an application to discharge an Order in Council made by Her Majesty at the recommendation of their Lordships, on the 16th of February, 1860. By that Order liberty was given to the Appellants to appeal, notwithstanding that the property which was the subject of the suit, was of less value, as appeared upon the proceedings in the case, than Rs. 10,000, which is the sum limited by the Order in Council of the 13th of June, 1838.
A petition of this nature, being ex parte, it is a universal and a most important rule of this Court, that every fact which is material to the determination of the question raised upon the petition should be truly and fairly stated; and where there is an omission of any material facts, whether it arises from improper intention on the part of the Petitioner, or whether it arises from accident or negligence, still the effect is just the same; if this Court has been induced to make an Order, which if the facts were fully before it, it would not, or might not, have been induced to make.
Now, in this case, their Lordships were of opinion, that in order to justify an appeal to this country it should be satisfactorily proved that the property in dispute really was of the value of Rs. 10,000. They did not think that there were any special circumstances in the case which would justify the Court in taking it out of the ordinary rule. There were no particular questions of law or indeed anything which would prevent the application of the strict general rule, which requires that the property in dispute should be of that value.
It was stated in the petition for leave to appeal, that the Plaintiffs had in the plaint represented the property to be of the value of Rs. 3,572, and that the suit was instituted to recover possession of certain mortgaged premises, of which the value was so estimated, but only for the purpose of complying with the rules of the East India Company's Courts for fixing the amount of the stamp upon the plaint; and then, after stating the proceedings in the case, the petition concluded with assigning as a ground for making the application here, that the value of the property having been represented by the Plaintiff as Rs. 3,572, the Court below had no authority to grant an appeal. The petition also alleged that although it appeared from the statements in the plaint that one real or market value of the land in question in the suit must be taken to exceed the amount of Rs. 10,000, yet the amount laid in the plaint as the value of the suit for the purposes aforesaid, being only Rs. 3,572, three times the amount of one year's jumma, or rent, the Petitioners were prevented by the rules of the Court from applying to that Court for such leave.
The misrepresentation, therefore, upon that petition is this. The plaint, according to the Regulation, estimates the value of the property at three years' jumma. Three years' jumma amounts to Rs. 3,572, and, therefore, according to the Regulation, represented a value which would furnish no criterion of what the actual value was. In this state of things it appeared to their Lordships that the parties ought not to be concluded by such a statement; that there was nothing inconsistent with that statement; that the property might be of a greater value, and, therefore, their Lordships gave leave to appeal upon somewhat unusual terms, namely, referring it to the Court below to report what was the actual value of the property.
Ben. Reg. X. of 1829, cited before us, enacts, that in suits respecting revenue lands three years' amount of the jumma shall be taken to be the value of the property, and with respect to suits for houses, &c., and other things of value, the amount is to be computed according to the estimated selling price, and that every plaint shall specify the value of the thing claimed.
Now, it appears, that there were in this case two distinct modes of valuation, one of which affords no criterion whatever of the actual value, the other of which, if it were fairly stated, afforded a most certain criterion, being the estimated selling price, not the price it sold for, but what the property would sell for at the time the plaint was filed.
Now, it appears that the Plaintiff had represented by his plaint that the property was estimated at Rs. 3,572, which was three years' jumma. But this statement does not fall within the above Regulation. For the purposes of this suit it was necessary to state what the actual value was; what the real selling value was; what the value was according to the Regulation, and, upon the final supplemental plaint, it was stated that the property was valued for this purpose at Rs. 4,300, and in the record of the proceedings which had been drawn up, stating the issues which the parties were going to try, it was stated that afterwards the Plaintiff had filed a supplemental plaint, in which it was alleged that the suit had been valued at Rs. 4,300, the price or value of the land, and that as the stamp was Rs. 150, it was sufficient to cover a claim of Rs. 5,000. Is it possible not to understand this as applying to Regulation X. of 1829, and as stating therein the value, the estimated selling price? and which is stated at Rs. 4,300. Now, if that fact had been stated to their Lordships, it is hardly to be believed that the Order for leave to appeal granted by their Lordships would have been made.
If we were of opinion that this had been an intentional misrepresentation on the part of the then Petitioners, we should, without the least hesitation, not only have discharged the Order, but we should have made the party who applied for it pay all the costs, and have given no liberty whatever to make any further application.
Their Lordships are, however, inclined to take an indulgent view of the case. They are inclined to think that there was not any intentional misrepresentation; and, therefore, though they discharged the Order for leave to appeal, they will not do it on the conditions I have mentioned. They would, indeed, under any circumstances, have thought it right, whether the mistake was intentional or unintentional, to have made the party applying for it pay all the costs, were it not for the delay on the other side. The Order for leave to appeal was made in February, 1860; it went out to India, and it appeared that at least in August, 1860, the Petitioners who now apply to discharge the Order were informed that they would have liberty to give evidence under it. We think they might have applied the moment they saw the petition and the Order which contained the directions I have mentioned; for then they must have been aware that a very important fact had been kept back from the Court, and they might then have applied to have discharged the Order. Still they might have thought, that on the construction of the Order they should be enabled to give evidence, and they might have thought that it would be less expensive to make the application to the Court below. But, in August, 1860, they were told of the construction which the Sudder Dewanny Court at Calcutta had put upon their Lordships' Order, that they would not be at liberty to give evidence upon that enquiry; and they were, therefore, then apprised of the manner in which the Order of their Lordships was to be carried out.
Under these circumstances, their Lordships are of opinion. that costs should not be awarded against the parties who obtained the Order giving leave to appeal, and they discharge such Order without costs and without prejudice to any other application by the Appellants, upon giving notice to the Respondents.
.