P L D 1950 Baghdad﷓ul﷓Jadid 1 (PLP)

1935 P C 71; 31 All. 457, & 32 All.147; distinguished. (c) Civil Procedure Code

S. 110‑Ruling adopted by Court ‑Alleged by petitioner to have been wrongly applied to ease Question of law. The petitioner in his grounds of appeal alleged that a certain ruling was wrongly applied to his, case in deciding the constitutional appeal against him: Held, that that itself was a question of law and that it could not be said that purely question of fact was involved in the case. Mustafa Khan, for Petitioner. Kaikaus, for Respondent. ORDER.‑

This is a petition for a certificate to appeal to the Judicial Committee against the judgment and decree of, the High Court, dated 7th of April 1949. The facts which may be relevant to decide the present petition can briefly be stated as below:‑-- One Mst. Zeb Illahi was married to one Muhammad Ah Shah who died about 50 or 60 years ago leaving considerable landed property situated in several villages in Bahawalpur State The property passed to his widow as her life estate. Nazar Muhammad Shah was a brother of Mst. Zeb Illahi who left two sons Syed Ghulam Muhammad Shah the present petitioner and Syed Fateh Muhammad Shah the respondent. Mst. Zeb Illahi alienated her entire property by a will in favour of Syed Fateh Muhammad Shah. The will was ratified by Nazar Muhammad Shah. After the death, of Mst. Zeb Illahi the property was mutated in the name of Fateh Muhammad S hah. His brother Ghulam Muhammad Shah brought a suit for the possession of his share in the property. He succeeded in the original Court but on an appeal to a Single judge in. this Court by the defendant the decree of the original Court was set aside. This led to the plaintiff to prefer an appeal to the High Court as a constitutional appeal against the decree and judgment of the learned Single Judge. He failed there. It may be stated at the outset that the value of, the property is more than Rs. 10,000 and it is urged that the cage is a fit one to appeal to the Judicial Committee. The valua tion is not contested but it is contended on behalf of the respondent that no certificate can be granted under law because the decree of the High Court in the Constitutional Appeal has affirmed the decree of the learned Single Judge. It was however contended by Mr. Mustafa Khan on the authority of 1944 Lah. 458 that as the Court of the Single Judge was not immediately below the Court passing the decree against which the appeal is to be preferred consequently the objection of the learned counsel of the respondent is not tenable. In reply to this our attention was drawn to Clause 9 of the original Constitution of the High Court which reads: "and we do further ordain that an appeal shall be to the High Court of judicature at Baghdad-ul‑Jadid from the judgment of one judge of the said High Court 'in civil or criminal cases in the same manner as an appeal shall lie in the said High Court." It was on the basis of this clause contended that the position of a Single Judge in this. High Court was different from that of a Single Judge of the Lahore High Court relating to appeals from his judgment and decree to the Division Bench of this High Court. We had agreed to this contention, but at the time of going into the authorities cited at the Bar, I referred to the Letters Patent of the Lahore High Court. After reading Clause 10 of the Letters Patent of the Lahore High Court I was inclined to change, my view, I, therefore, sent for the counsel of the parties. Only the counsel of the 'respondent was available. His contention is that the language of the Letters Patent of this High Court differs form the language of Clause 10 of Letters Patent of the Lahore High Court and that an appeal from the judgment of a District judge lies to the High Court under section 100 of the Civil Procedure Code. The appeal from a Single Judge from this High Court could, therefore, lie like the appeals of the District judge to the Bench of the High Court under section 100 of the Civil Procedure Code. The view of the dissenting judge in the ruling quoted above, therefore, could fitly apply to the present case. I think the proper rule of the interpretation of the Statute is that the words used therein must be given proper consideration and proper value. If the framers of the Letters patent of this High Court had the their intention different from Clause 10 of the Letters Patent of the Lahore High Court, then the language in Clause 9 of the Constitution of this High Court would not have been different from the language of Clause 10 of the Letters Patent of the Lahore High Court. The reply of the learned counsel for the respondent appears to be plausible and consequently, I am of opinion that the majority view of 1944 Lah. 458 is not applicable to the present case to to the conclusion that the in the present case according to section 110 of the an be granted only if the appeal involves Civil Procedure Code, c some substantial question of law. Mr. Kaikaus's contention was that the question of custom is not a question of law and consequently this application stands decided on this point alone and must be rejected. He has quoted 14935 P C 71, 1937 Lah. 58; 31 All. 457 and 32 All. 247; 1937 Lah. has‑no applicator to the present case. In the other rulings there was question of the existence of a custom and consequently that was treated as a question of fact. It has been stated on page 1049 of the Code of Civil Procedure by Chitaley 1944 Edn. that the question of the existence of a custom may under proper conditions involve substantial question of law. The learned counsel for the petitioner has quoted 1917 P C 33 where it was held that questions of the existence of ancient custom are generally questions of mired law and facts. Now the present case the finding of the Court while deciding the appeal against the petitioner were in the follow ing terms: " Now the, accumulative effect of all this discussion is that a will by a widow governed by the customary law is void the at the instance of the reversioners and if assented to by her next reversioners and relating to self‑acquired property it becomes operative, the next reversioner who assents to such a will is therefore incompetent to challenge it by his own conduct when he survives the After the death of the widow the remote debarred from challenging the validity of the alienation." Now the findings of this Court clearly lead to the conclusion that the point involved is not purely a point of fact but is evidently a point mixed of facts and law. The petitioner in his grounds of appeal has contended that 1946 Lah. 180 which had been adopted by this Court decide the constitutional appeal against him was wrongly applied to his case. To our mind, his itself is a question of law and we cannot therefore say that purely a question of fact was t involved in the case for which a concurrent finding of the two Courts is given. Mr. Kaikaus, however, contended that the mere fact that there is a question of law involved in an appeal is not per se sufficient to grant a certificate to appeal to the Privy Council. We agree with him. The question must be substantial question of law. The question referred to from our judgment clearly indicates that a substantial question of law is involved in this appeal, and the rulings which were quoted by the learned counsel at the time of the hearing of the appeal did not refer to any view of the judicial Committee on this point. 1936 Mad. 311 which was quoted by the learned counsel bf the respondent rather gives some support to the petitioner. On page 311 it was observed, "In‑a latter case 44 Mad. 293. (P C), Lord Buckmaster observed that this clause contemplates cases in which it is impossible to define in money value the exact character of the dispute, and where there are questions as for example those relating to religious rights and ceremonies, to caste and family rights" After giving our due consideration to the point raised before us, we hold that the question before us cannot be treated as a pure question of fact but a mixed question of fact and law and conse quently we accept the petition and grant the certificate declaring it a fit case for appeal to the judicial Committee. We pass, no order as to costs. A.H. Petition accepted