P L D 1963 Dacca 80 (PLP)

AKBAR, J.‑This application for leave to appeal to the Supreme Court is made by one of the defendants against the judgment of a Division Bench of this Court in S. A. No. 729 of 1958, decided on 15th June 1959.

2. The plaintiffs case was as follows. By kobala, dated 27th May 1949, they sold their Shahpur and Bairampur properties to the defendants Nos. 1 and

4. Later they came to know that their Khajurdanga properties had also been included in the said kobala. On taking a certified copy of the kobala, they found that though they had not sold the Khajurdanga properties still the same were inserted in the kobala. Hence, they filed a suit asking for a declaration that the kobala was not binding on them so far as the Khajurdanga properties were concerned.

3. Defendant No. 1 only contested the suit. He asserted that by the kobala they had purchased all the three properties for a sum of Rs. 7,

000. The trial Court dismissed the suit.

4. The plaintiff's prayer that the defendants should not be allowed to take back the original kobala was allowed.

5. The plaintiffs then filed an appeal against the judgment and decree of the Munsif. When this appeal was ready for hearing the defendant's prayer for taking away the original kobala was allowed. As soon as the plaintiffs came to know of it, they filed an application stating that the defendant had taken away the kobala with some ulterior motive and that it should be refilled forthwith. The Court then ordered the defendant to file it within 3 days. The defendant No. 1, however, filed a petition stating that while he was returning G home the boat capsized, and, he lost the original kobala. S, The plaintiffs appeal was eventually dismissed.

6. They then filed a second appeal to this Court. As the S first appellate Court had not fully enquired into the question of the missing kobala, the Court remanded the appeal to the said Court for the disposal in accordance with law. The first appellate Court thereafter decreed the suit.

7. The defendant No.1 second appeal against the judgment and decree of the first appellate Court was dismissed by the High Court, and hence he proposes to file an appeal to the Supreme Court.

8. The valuation placed in the plaint and in the memoran dum of appeal in the first and second appellate Courts was Rs. 3,

500. Mr. Hamidul Huq Chowdhury, the learned Advocate for the petitioner, has contended that since then the value of the disputed land has considerably increased and that its present value would be about Rs. 15,000, and so the requirement as to valuation was satisfied.

9. The said property was valued by the plaintiffs at Rs. 3,

500. The appellant also valued the second appeal at Rs. 3,

500. In our opinion, the doctrine of approbate and reprobate applies to this case.

10. In Mahendranarayan Ray Chowdhury v. Janakinath Ray (I L R 58 Cal. 86), Rankin, C. J., states that Rameshwar's case (45 C L J 225) and Muthuswani's case (10 M I A 318), are distinct authorities to show that the doctrine that a party cannot for this purpose both approbate and reprobate applies to the case where the appeals to the lower appellate Court upon a valuation inconsistent with the valuation upon which he seeks a certificate enabling him to appeal to the Privy Council. See also Altafa Khatun and others v. Saila Bala Devi Choudhurani (P L R 1956 Dac. 1014), Sreemati Radharani Dassya and others v. Purna Chandra Sarkar and others (34 C W N 671), and Radhika Nath Biswas v. Midnapore Zamindari Co., Ltd. (41 C W N 289).

11. In the last mentioned case, it was laid down that the correct test to apply was whether the party seeking to vary the earlier valuation for the purpose of an appeal to England had obtained an advantage on the basis of the previous valuation, now said to be erroneous, and it was said that where it could reasonably be said that he was trying to approbate and reprobate, he was precluded from revising the previous valuation.

12. In this case in the Court of appeal below, both the parties, proceeded on the footing that the property in dispute was under Rs. 15,

000. In these circumstances, it would not be competent now for the defendant to turn round and say that the valuation was above Rs. 15,

000. For the reasons stated above, we hold that the doctrine of approbate and reprobate applies to this case and hence we argil unable to accept a valuation which is inconsistent with the valuation given by the defendant in the lower appellate Court is, not acceptable.

13. Mr. Hamidul Huq Chowdhury has next contended that the proposed appeal directly involves a claim in respect of the properties of the value of more than Rs. 15,

000. Relying on the decision of Meghji Lakhamshi & Brothers v. Furniture Workshop ((1958) 10 D L R 35 P C), he has contended that the "value" must be looked at from the point of view of the appellant.

14. Here, we may mention that the petitioner in his written statement contended that the value of the suit properties was Rs. 4,500 and not Rs. 3,500 as alleged by the plaintiffs. The issue as to the sufficiency of the valuation was tried as a preliminary issue, and the Court after full enquiry held that the value of the suit properties was below Rs. 3,975.

15. The defendant No. 1 expressly states in his written statement that the value of the property in dispute is Rs. 4,

500. He raised the question of valuation in the trial Court, and there was a decision on the issue raised in the suit. He did not challenge the said decision in an appropriate proceeding. He now wants to re‑agitate the question of valuation. This he is not entitled to do.

16. The facts of the case on which Mr. Chowdhury has relied are totally different. In that case there was no question raised as to the market value of the property, nor was there any decision thereon. In our opinion, the attempt now made to say that the suit should be treated as involving over Rs. 15,000 is one that cannot be maintained.

17. The only question then is, whether we can certify this to be a fit case for appeal to the Supreme Court? Mr. Chowdhury has contended that grounds Nos. 1 and 2 raise substantial questions of law of great public importance, and hence we should grant the leave prayed for. Ground No. 1 is as follows: "I. For that one of the contentions of your petitioners in the grounds of appeal before their Lordships was that Abdul Latif son of Majibar Rahman, vendee No. 2 of the kobala Exh. 1(a), dated 27th May 1949, not having been imp leaded at the time of institution of the suit on 1st July 1952, and Abdul Majid, son of Majibar Rahman having been made defendant No. 2 in the suit and that on the objection as to the defect of parties on this score having been taken by the defendant in the written statements and the plaintiffs having amended the plaint by amending the name of the defendant No. 2 as Abdul Majid alias Abdul Latif son of Majibar Rahman, long after filing of the suit, the lower appellate Court ought to have held that the said amendment having been made after the period of limitation, the suit abated as against the said Abdul Latif, and the suit, being one for recovery of possession, the whole suit failed for defect of parties, their Lordships have altogether failed to consider this point in their judgment which was passed long after the hearing of the appeal.

18. This ground raises for consideration the question whether section 22 of the Limitation Act was attracted to this case. In other words, the Court would have to consider whether this amendment was merely a clarification of a mis‑description or a substitution or addition of new defendant within the meaning of section

22. This amendment was allowed in 1953. The defendant did not thereafter challenge the said order. Further, we find that such objection was also not taken in the first or second appeal, and therefore, he cannot be allowed to raise it now. In any event, it cannot be regarded as a substantial question of law, because this ground does not raise any arguable point of law. If the general principles to be applied in determining the questions are well‑settled G mere application of such principles would not be a substantial question of law.

19. Now, ground No. 2 on which Mr. Chowdury has relied is thus: "II. For that the contention of your petitioner before their Lordships was that as regards the alleged interpolation in the document the plaintiffs stated in the plaint that the defendants had introduced an extra page in the kobala and had forged the signatures and thumb‑impressions of the plaintiffs after the document was presented for registration in the Sub‑Registry Office, but during the trial their case was that there were interpolations and additions in the kobala itself. As such the plaintiffs should not have been allowed by the Court to make out a new case different from their plaint at the time of hearing of the suit. Their Lordships ought to have upheld this contention of your petitioner." This question was dealt with in the judgment as follows: "Mr. Hamidul Huq Chowdhury, the learned Advocate for the appellant, has contended that as the plaintiffs made a new case at the time of hearing, the appellate Court should have disbelieved their story. In the plaint it is stated that the defendants had introduced an extra page in the kobala and had forged the thumb‑impressions of the plaintiffs after the document was presented for registration in the Sub‑Registrar's Office. During trial their case was that there were inter polations and additions in the kobala. The fact remains that the plaintiffs were challenging certain part of the kobala as interpolations. Because it was not possible for them. to infer correctly from certified copy of the kobala how such in terpolations were made they must have thought that this was done by inserting a page in the kobala. During hearing of the case on examination of the original kobala they found that no new page, had been inserted, but certain interpolations had been made on the body of the kobala, and hence they attempted to prove the said fact. The plaintiff's story in the plaint was that though they did not sell Khejurdanga properties still the same were included in the kobala. During hearing of the case they also stuck to that story, namely, that by this kobala they did not sell Khejurdanga properties. They only changed their version as to the manner in which the said properties were included in the said kobala. Hence, it cannot be said that they made a new case at the time of hearing." We are, therefore, unable" to agree with Mr. Chowdhury that this ground raises a substantial question of law.

20. Mr. Chowdhury has lastly contended that the High Court failed to notice that the first appellate Court did not consider some material evidence and circumstances in the case. He has argued that in the first appeal the learned Subordinate Judge did not consider, whether, in the light of the addendum note in the kobala, its corrigendum could be said that there was an interpolation in the document as regards the kobala properties. No such ground was taken in the first appeal. There is also nothing to show that this point was raised before the first Appellate Court at the time of hearing of the appeal. It, therefore, cannot be said that the first Appellate Court failed to consider any matteial evidence in this case. In any event, we do not regard it as substantial question of law so to justify grant of a certificate.

21. For the reasons stated above, we are of opinion that this is not a fit case for appeal to the Supreme Court. We, therefore, refuse the leave, and reject the, application with costs‑hearing fee assessed at two gold mohurs. SIDDIKY, J.‑

I agree. S. B./A. H. Application rejected.