P L D 1965 (W (PLP)

WAHIDUDDIN AHMAD, J.‑

In the case the only objection, raised by Mr. Dingomal the learned counsel for the respondent is that the judgment of the Letters Patent Bench having affirm c, the judgment of the learned Single Judge, it is not a fit case in which this Court should grant a certificate of leave to appeal to the Supreme Court, under section 110, C. P. C. It is conceded on both sides that the condition regarding the valuation is satisfied and the property in dispute is of more than Rs. 20,000.

2. Mr. Dingomal the learned counsel contended that only in such cases this Court is competent to grant certificate where there is a substantial question of law. He further contended that there is a concurrent finding of facts of both the Courts and no substantial question of law is involved in the matter in dispute. On the other hand Mr. Sirajur Rahman, the learned counsel for the petitioner has urged that the Letters Patent Bench did not consider at all the question of limitation and estoppel raised in the grounds of appeal and in the issues struck in the trial Court. He further contended that even on the finding of fact arrived at by the learned two Courts it cannot be held that the property in dispute was a benami and its real owner was the respondent.

3. Formerly the view taken by the High Courts in this sub‑continent was that simply because certain questions of law are involved in a case it would not mean that those are substantial questions of law. The preponderance of the view held was that the substantial question of law must be of a general and public importance. The controversy on this point was set at rest in Raghunath Prassad Singh v. Deputy Commissioner of Partabgarh (AIR 1927 P C 110). In that case their Lordships held that the question whether there was a substantial question of law need not be of general or public importance it could also mean as between the private parties. In this connection their Lordships observed as under:‑-- "Admittedly here the decision of the Court affirmed the decision of the Court immediately below; therefore, the whole question turns upon whether there is a substantial question of law. There seems to have been some doubt at any rate in the old Court of Oudh, to which this one succeeded, as to whether a substantial question of law meant a question of general importance. Their Lordships think it is quite clear, and indeed it was conceded by Mr. Degruyther, that that is not the meaning but that the words "substantial question of law" mean a substantial question of law as between the parties in the case involved. Mr. Degruyther has really tried to show the Board that there is no substantial question of law by more or less taking up the merits of the case and showing that the decision is quite obviously right. Their Lordships do not think that they would be quite in safety to take that view in a case which certainly occupied the Court below for a very long time and on which there is a very elaborate judgment. They therefore, think that upon the face of the matter there is, as between these parties, a substantial question of law." Thus it is quite obvious that according to the view of the Privy Council a question of law would be substantial even if it is confined to the dispute between the parties. In other words the A substantial question of law would be of private importance, if it substantially affects the dispute between the parties. In a recent decision the Indian Supreme Court also considered this point in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (A I R 1962 S C 1314). In that case the High Court refused to grant a certificate under section 133(1)(a) which is in the similar terms as section 110, C. P. C. on the ground that there was no substantial question of law involved in the matter. In that case the dispute between the parties was about the proper construction of the Managing Agency agreement. The High Court held that the construction of the Managing Agency agreement could not be considered to be a question of law. The Supreme Court of India, upset this decision and held that the construction of the Managing Agency agreement was not only one of law but also neither simple nor free from doubt and that the High Court was in error in refusing to grant the appellant a certificate under Article 133(1)(a). Their Lordships further observed that as upon the success or the failure of the contention of the parties, they stood to succeed or fail with respect to their claim for nearly 26 lakhs of rupees, it was a fit case in which leave ought to have been granted. On the main point the Indian Supreme Court observed as under:‑ "We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper lest for determining whether a question of law raised in the case is substantial would in our opinion be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well‑settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." Their Lordships further observed: "Applying these tests it would be clear that the question involved in this appeal, that is, the construction of Managing Agency agreement is not only one of law but also it is neither simple nor free from doubt. In the circumstances we have no hesitation in saying that the High Court was in error in refusing to grant the appellant a certificate that the appeal involves a substantial question of law. It has to be borne in mind that upon the success or the failure of the contention of the parties, they stand to succeed or fail with respect to their claim for nearly 26 lakhs of rupees." In the light of the above discussion we would also consider the points at issue in this Matter. It will be noticed that the petitioner had raised two: very important questions of law namely of limitation and estoppel in paragraph 23 and 25 of the Memorandum of Appeal. These are reproduced below:‑-- "Paragraph 23.‑The learned trial Court should have held that on the face of the pleadings the suit was time‑barred." "Paragraph 25.‑--The learned trial Court erred in not holding that the plaintiff‑respondent was estopped by deed, contract, and conduct from challenging the title of the appellant and her rights as partner." Unfortunately, the learned Letters Patent Bench did not discuss any of these points in the judgment under consideration. It is for consideration in the present case whether in view of letter Ex h. 37, dated 1st May 1950, and the pamphlet published on the occasion of Diamond Jublee of the firm in question, the plaintiff (respondent) is estopped from contending that the property in dispute is benami and he is its real owner. Similarly the question whether on the evidence produced by the parties the property in dispute could be held to be benami transaction is also a point which is very complicated and not free from difficulty. In this matter also the property in dispute runs into lakhs of rupees. In these circumstances it cannot be doubted that substantial questions of law, which vitally affects the rights of the parties are involved in this matter. We, therefore, consider this as fit case for grant of certificate under section 110, C. P. C. Accordingly, we will direct that a certificate be issued to the petitioner for leave to appeal to the Supreme Court. K.B.A. Certificate issued.