BOMBAY GAS CO. LTD.

JAGAN NATH PANDURANG AND ORS.

March 22, 1972

[C. A. VAIDIALINGAM AND I. D. DuA, JJ.]

Constitution of India, 1950-Article 133( 1)(b)-$cope-Appeals -Certificate to dppoeal to Supreme Court.

In order to attract article 133(1)(b) the essential requirement is that there must be involved in the appeal to this Court a claim or question respecting property of the value of not less than Rs. 20,000/- in addition to or other than the subject matter 0f the dispute; if there i9 no question or claim raised respecting property other •.han the subject matter, then, clause (a) of article 13 3 will apply. Adding future interest or possible further claims to the original value of the subject matter till the date of the judgment of the High Court and which items are not the subject of consideration by the High Court .will not enable a party to plead that the claim so calculated exceeds Rs. 20,000. {~40 OJ

The respondent had filed applications under the 'Payment of Wages Act 1948, claiming overtime wages for the period 1957 to 1958 and wages for weekly off days for the period 1962 to 19·63.

Against the judgment of the High Court setting aside the order of the appellate authority holding the claim as time barred, the appellants filled appeal to this C(}urt on the basis of a certificate issued by the High Court under article 133 (l ){b). In its application before the High Court the appellant had prayed for the grant of a certificate that the amount or value of the subject matter before all the authorities, in the appeals, as well as in the High Court and still in dispute in the proposed appeal to this Court was Rs. 20,000/- and upwards, and, in the alternative on the

round that the ce was fit one for appeal to this Court. On the basis of the claims made by the workmen as overtime wages and weakly off days was for the particular periods, the appellant had calculated at the same rate for subsequent periods till the judgment of the High Court and claimed that the amount or value in dispute in appeal to this Court was ove-r Rs. 20,000/-. The appellant had also urged that it would have

to meet in future also claims from its workmen and, as such, it will have to face a recurring IiabiHty. On this basis the apPellant had raised the plea that the judgment of the High Court involved directly or in~ directly a claim or a question in respect of prc>perty of the value of Rs. 20,000/- and more.

The respondents moved this Court for revocation of the Certificate. 'Illey urged that what weighed with the High Court 'for granting a ce-rtificate under article 133 (1 )(b) was the circumstance that the nature cf

the demands by the workmen were such as they wete l'Jcurring claim arising in the future also and as such the final judgment and order of the High Court involved , directly or indirectly a claim respecting property of the value not less than Rs. 20,000/. and that this view of the High Court was erroneous.

HELD :that the certificate issued by the. High Court under article 133 ( 1) (b) was not proper and valid and hence the appeal was unsu~ tainable. ·

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(1972} 3 S.C.IL

(i) The High Court bas not given any ipdication as to bow it issued the certificate under article 133(1)(b): it is clear that it did not grant the certifkat.e on the claim made by the appellant, under clause (a) or clause (c) of article 133(1), [937 Al

(ii) In view of the fact that the High Court granted the certificate under .article 13 3 (1 )(b) , it has to be presumed that it has accepted the appellant's plea that a certificate could be granted under the clause when there is a recurring liability, which, if calculated 'for subsequent years, will be Rs. 20;000; .. or more. {1937 CD]

(iii) But, the present case is not one where the decision of the High Court, apart from dealing with. the subject matter in dispute before it, has the effect cJf affecting. the rights of the appellant regarding other properties, including money. The judgment of. the High Court bas. only adjudicated upon the subject matter of the specified claim of the work~ men which was for a particular period. The 'judgment does not involve directly or indirectly, 3-?art . from the subject matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000/~ and more.

The appellant was not entitled to notionally add, to the- . amount originally claimed by the workmen for particular periods any further AUnOUiltSI on the ground that they must be nsidered to have accrued due to the workmen till the date of the judgment of the High Court. (.945 E, 946 E]

(:haitarmal v. M/s. Pannallal Chandulal, [19651 2 S.C.R. 751, applied'.

A. V. Subramania Ayyar v. Sellammal, I.L. R. 39 Madras 843, Meghji Lakhamshi an'd Brothers v. Furniture Workshop, £19541 Appeals Cases 80; Smt. Rajah Kishore Devigaru v. Bhaskara Gouta Chorani and others, A. I. R. 1960 A. P. 286; Commissioner oJ Income-tax; Madras v.

S. L. Mathias, A.I.R. 1938 Mad. 352; G. Appuswamy Chettiar and another v. R. Sarangapani Chettiar and orhers, [1965] (1) l.LR.

Mad. 361: Moti Chand and others v. Ganga Parshad Singh and another, 29 Indian Appeals 40 and Surapati Roy and others v. Ram Narayan Mukherji and others, 50 LA. 155, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of 1968. . .

Appeal from the Judgment and Order dated February 6, 1967 of the Bombay High Court in Special Civil Application No. 1987 of .1965. .

WITH Civil Misce.l!ilneous eiition No. 1300 of 1972.

(Application by the Respondemts for revocation of certificate granted by the High Court.) G Soil Sorabji, K. D. Mehta, P. C. Bhariari and 0 .. C. Mathur for the appellant.

M. C. Bhandare, Sunanda Bhandare and K. Rajendra Chowdhary, for respondents Nos. 1, 2, 4, 5,' 7, 8, 10, 12, 13, 95, 96,

98. 100, 101 to 104 ad 108. .

The.Judgment of the, Court was delivered by H Vaidtalingam, J.

Tis ppeal~ on certificate, by the Bombay Gas Co. Ltd., is directed against the judgment and order dated

BOMBAY GAS CO. v. JAGAN NATH (Vaidia/ingam, J.) . 931

February 6, 1967 of the Bombay High Court in Special Civil Application No. 1987 of 1965.

Th~ High Court set aside the decision of the Court of Small Causes, Bombay, in Payment of Wages Appeals Nos. 162 and 163 of 1962 and remanded the 'proceedings to the Aqditional Authority for calculating and awarding over-time wages that may be due to the responden~· Nos. 1 to 80 herein.

The High Court further reversed the decision of the Court of Small

Causes, Bombay, in Payment of Wages Appeal No. 61 of 1963 and restored the orders passed by the Third Additional Authority in favour of the respondents Nos. 81 to 118 herein, regarding their right to get wages for weekly off days. C.M.P. No. 1300 of 1972 is an application filed ~Y the respondents in the civil appeal for C revoking the certificate for leave to appeal to this Court granted by the High Court to t; Qe appellant herein.

We will-briefly state the circumstances under which the appeal has co111.e to this c;::ourt on certificate : The respondents Nos. I to 14 who \\ere employed under the appellant as Syphon Pumpers filed on March 3, 1958 before the Additional Authority 14 ap- D plicatioris under s. 15-of the Payment of Wages Act (hereinafter to be referred as the Act) claiming over-time wages for the period February 1957 to January, 1958. On the same date the respondents Nos. 15 to 80, wf.lo were employed under the appellant as Mains workers filed before the same Authority 66 applications

claiming over-time wages for the same period.

The claim was E substantially based under the provisions of the Bombay Shops and Establishments ACt, 1948 {hereinafter to be referred as tihe Establishments Act). The appellant raised two grounds of defence: (a) The claims were barr~ by the Award, Part 1I of the Industrial Tribunal, Bombay dated March 30, 1950 in Reference (IT) No .. 54 of 1949; and (b). l'he applicants were not workmen covered by the Establishments Act. On October 13, 1962, the Additional F Authority held that the Award, referred to, by the Company was no bar to the said employees claiming over-time wages.

But the said Authority accept~ the contion of the Company that the applicants are not cover~ by the Estalishments Act, which gives them the benefit of weekJy off days with waes under s. 18(3 ). In this view the applications filed by the respondentls Nos. 1 to 80 G herein were dismissed. J'he said applicants filed before the: Court ·

of Small Causes. Bombay, which was the J\.ppellate Authority, Payme11t of Wages Appeals Nos. 162 and 163 of 1962 challenging the decision dated OctQber 13, 1962 of the. Additional Authoricy,

dismissing their applications. ·

H During the years 1962-63, the respondents Nos. 81 to 118 herein, in the Civil Aj:>peal filed 38 applications before. the. Third Additional Authority under s. 15 of the Act claiming wages, for weekly . off. days.

Th~ said respondents were working ¥t Mains,

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Heating Appliances and Fitting Departments of the appellant.

A ii.ere again, the basis of the claim was under the provisions of the Establishments Act. The appellant raised the same two defences as in respect of the claim for overtime wages. The Third Addi~ tional Authority, by its judgment dated April 26, 1963, held that the Award, Part II of the Industrial Tribunal, Bombay, dated March 30, 1950 in Reference (IT) No. 54 of 1949 is no bar to B entertain the appliations of the said employees. The said authority further held that the district office in which the said applicants were employed is a "Commercial Establishment" under the Establishments Act and as such they were entitled to wage}. for weekly off days under s. 18(3) of the said Act. Accordingly, the said authority directed the appellant to pay the amounts mentioned in C the judgment to respondents Nos. 81 ro 118 and also to pay certain amount by way of cgmpensation. The appellant filed Payment of Wages Appeal No. 61 of 1963 before the Court of Small Causes, Bombay, which was the Appellate Authority, challenging the decision of the Third Additlional Authority dated April 26, 1963 re.· garding payment of wages for weekly off days.

All the three appals_, namely, Payment of Wages Appeals Nos. 162 and 163 of 1962 telating to over-time wages, filed by the res- ' portdents Nos. 1 to 80, and Payment of Wages Appeal No. 61

of 1963 filed by the Company relating to wages for weekly off days decreased to respondent~ Nos. 81 to 118 were heard together and disposed of by a common judgment dated February 11, 1965 by E the Appellate Authority, the Court of Small Causes, Bombay. It was held that the claims of all the workmen for over-time wages and wages for weekly off days were barred by the Award, Part II dated March 30, 1950 _of the Industrial Tribunal, Bombay, in Reference (IT) No. 54 of 1949 and that the said award was still in force and binding on the parties.

Accordingly, the Payment of Wages Appeals os. 162 and 163 of 1962 were dismissed and F Payment of Wages Appeal No. 61 of 1963. was allowed. Theresult was that the apQ!ications filed by the employees before the Additional Authority and the Third Additional Authority stood dismissed.

It must, however, 1:le stated that though the Appellate Authority, G the Court of Small Causes, Bombay held that the claims of all the workmen, both for over-time wages and weekly off days wages were barred by the Award, nevertheless it also considered the questlion whether the workmen are employed in a "Commercial Establishment'' so as to claim relief under the Establishments Act.

The

Appellat~ Author.ity. held that the district office of the Company H tJ:ough sJtu.ated wtthm the compound ?f the factory is a "Commer- . cu'll Estabhshment" under the Estabbshments. Act. Accordingly, the. Court of Small Causes agreed with the finding of the Third

BOMBAY GAS CO, V. JAGAN NATH (Vaidia/ingam, J.) 933

Additional Authority that the workmen were governed by the provisions of the Establishments Act and as such are entitled to the benefit conferred on them by that Act. However, in view of the fact that the claims of all the workmen were held to be barred in view of the award m Refence (IT) No. 54 of 1949, the workmen's appeals were dismissed and the appeal filed by the Company was allowed.

A~ stated earlier, the decision of the Court of Small Causes resulted in the dismissa~ of all the applications filed by the workmen before both the Additional Authority and the Third Additional Authority.

All the 118 workmen filed before the Bombay High Court, Special Civil Applicatiq_n, No. 1987 of 1965 under Arts. 226 and 227 of the Constitution for quashing the judgment of the Court ot Small Causes, Bombay; dated February 11, 1965. By its judg ment and order dated February 6, 1967, the High Court held that neither the claim of the respondents Nos. 1 to 80 for over-time wages, nor the claim of the respondents Nos. 81 to 118 for wages

for wkly off days Wa§ barred by the Award, Part II, dated March 30, 1950 in Reference (IT) No. 54 of 1949. So far as the respond ents Nos. 1 to 80 were concerned, the High Court! has set aside the judgment of t.Qe Court of Small Causes, BombayJ as well as the order dated October 13, 1962 of the Additional Authority and remanded their applcations to the latter for -ascertaining and decreasing the amount _of over-time wages that may be due to them.

Regarding the respondents Nos. 81 to 118, the High Court has set aside the judgment of the Court of Small Causes, Bombay, and restored tlie order dated April 26, 1963 of the Third Additional Authority recognising their claim for wages for weekly off days.

It is seen from the judgment of the High Court that the Company did not challenge the finding of the Court of Small Causes that the workmen are employed jn a "Commercial Estab1ishment" and as such are entitled to the benefitS of the provisions of the Establish ments Act. The High Court has also stated that the reason given by the counsel appearing for the Company for not challenging that :fincling was 11h.at it was not open to the Company, which was a respondent in the writ petition to challenge the said finding in those proceedings. Therefore, 'the High Court has adjudicated upon the only question whether the Award bars the claims of the workmen I$ held by the Court -~ Stnall Causes. On this point, as pointed

out~ earlier, the High Court disagreed with the decision of the Coun of Small Causes.

the appellant filed on April 6, 1967 in the High Court Appli~ caUOit No. 869 of 1967 praying for the grant of a certificate of

fi~~~ to enable it to appeal to this Court In the applicatiOn. of the appellant, after setting out the nature of the applications filed before

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(1972) S.C.R..

Add't' al and Third Additional Authoriti:s, the amount~; A the I 1on · f th d tw A th · claimed by the workmen, . the decision o e sa1 o u ontJes 11 as the judgmen~ and order of the Court of Small Causes,. dwfue High Court, it was stated a~ th~ amount or vue of the subject matter before all the Authontles, m e appeals, as well as m the Hioh Court and still in dispute in the prop, osed appeal to this

Court, was Rs. 20,000 !l:lld upwards. It further tated at in B any event the case is a fit one for appeal to s Court. Accordmgly, the appellant prayed for the grant of certifiate ~~ the amun_t or value of the subject matter irl the srud Spec1at C1vil Applicauon, applications before the Additional and Third Additional Authorities, in the appeals before the Court of Small Causes and in dispute in the proposed appeal to-this Court was.Rs. 20,0~ and upwards or. in the alternative oa .the ground that the case IS a fit one for C. appeal to this Court.

 It 'will be seen, that thbugh the appellant did not specify under which clause of Art: 133(1) the certificate was asked for, neverth~ less a Pe-rusal of tJ:le.avcijnents made in the Petition and the prayers

made therein show that the appellant was asking for a certificate p

under clauses (a) and, or (c) of Art. 133(1). The High Court after hearing all parties, by i1s order dated Octpber 19, 1967 directed a certificate to issue under .Art. 133(l)(b) of.the Constitution. On the basis of the said ce_ttifica~. th~ petition of. appeal has been lodg.:. ed. by the appellant in this_ Co~ .. 6n December 16, 1967.

The respondent bas.filed C.M.P. No. 1300 of 1972 requesting E this Court to revoke th~ certifieate gtanted to ihe appellant by the High <;:ourt on October 19, 1967. If the c<; tificate is re-voked. that will result in our holding that the appeal is not compet.en~.

Hence we will deal with the application for revocation of the certificate. ·

In the affidavit filed in support of the application for revocation, Itt folowi.ng averments are rna~ i The appeal refers to two sets of. ~~ which are separate and independent of each other- ODCJ for over-time wages -and the other for wages for weeklv off days:··111e applications in respect of these two different claims . filed by the concerned workmen before two different Autht>- ntsn. ur the Act and were also disposed of separately by those G A\ltbontu:s. Separate appeals were preferred before the Court of .

Small Causes. . Though a common judgment was delive-red by the oarN>f Small Causes, the two sets of cla.ims have been dealt with .

mdc::pendetly. and parutcly in the: judi!ment. as there were sepa~ . rate and d1ffcrent appeals. The claim for wkly off days wages com~ oaJy t£1, Rs. 661~ and that was the value of the subject H matter .before the Thud .Additional Authority and in: the apPeal bdure the! .Crt of Small Caus~ as wen p. in tho wnt petition bdore the H1gh CoUrt. Tho same is-. thevalue of tho..suhjed

BOMBAY GAS co. v. JAGAN NATH CV.aidialingam, J.) 935

A matter of the appeal to this Court. The value of the subjec~ mattoc

of the' claim in: respect of over-tlime wages was only Rs. 10660 before the Additional Authority and in the appeals before the Court of Small Causes, i!). the High Court, as well as in the appeal . before this Court! Th.e value of the subject matter of neither of the two separate and distinct claims is Rs. 20,000; and even if B both the claims.are added, tqe value of the subject matter is less

than Rs. 20,000. ltwas, in view of this circumstance, that the High Court did n:ot grant a cetificate under Art.133(1)(a).

The High Court diq not consider the case as a fit one for appeal to this Court, and hence no <;:er; tificate was granted under Art.133(1)(c). What has weighed with the High Court in granting a certificate under Art.133(1)(b} is the circumstance that the nature ofthe C. demands made by the workmen were such that they e recuning

claims arising in the future also and as such the final \udgment and order in the writ petition involve directly .or indirectly a claim respecting property of the value of not less than Rs. 20,000. This: view of the High Couri is erroneous and contrary to the decisions of this Courtd as such the grant ofcertificate by the High Court D iserroneQus.

Along with the application, the respondents havejiled a stat-· ment to show that the value of the subject matter of the laim re-· garding over-time wages does not exceed Rs. 1Q660.

At this stage it may be mentioned that according to the appellant this schedule deals only with the claims made by the Mains workers and' E it does not include the amount cJaimed by the 14 Syphon Pumpers.

On behalf of the am_>ellant, an affidavit has been filr-<1 opposing the application for revocation of the certificate.

In this affidavit the averments made ar~ as follows. : Though the appeal has beenpending in this Court f()r a considerable time, llhe respondents have F filed the application for revocation ofthe certificate only when the appeal was about to be heard. It is pointed out that the res-· pondents opposed before the High Coun the application for grant of certificate .on the groWJ, d:that the. am.egate 'of all claw..& l'Ut together ; amounts only tn''!Rs,.17678.80 P,,:·:d hence .no certifi. cate s&o.uldbe granted .... ,'; f.he; appellant had:· filed a rejoinder giving details :regarding the: vahio-Of: the subject~ matter of (he appeal G to this Coutt.

As per the particulars given therein, :the .value :of the subjeCt niatter of theentire claim in ~.spect of over.., time:wages, weekly'off.days wagesarul.compensation. iS of the .. value' of Rs,.26822.<W.

Therefui~·, the ainountor value of.the subject matter in dispute in the ·court of the. firSt insra.nce and still in dis-· pute.in the appeal is Rs: 26822.09, w)lichiswell over the.prescrib- H ed limit of: .. Rs.: 20,000. ·.·:The claim, for weel<ly off days wages at the rate. claimed by the~:workmen on the date of the judgment or the High ,(OOuh,. that i.~ February.6, l96l.became.crystalised in,

tbe:ate .amorin• of; over Rs. 30~000. : :Sitiillar1y, the' claim:

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for over time wages as a result, and effect or the judgmeht of the A High Court, as on the date of the decision in the writ petition, also exceeds the sum of Rs. 20,000.

The respondents raised a contrcr versy regarding the all!..OUnt or value of the subject matter in dis pute before the High Court in applicationNo. 869 of 1967.

But, inasmuch as the recurring claims of both weekly off days wages and overtime wages, at the time of the High Court's judgment in B the writ J}etition on February 6, 1967, had crystalised into amounts exceeding Rs. 20,000, __ the High Court issued the certificate under

Art: 13 3 ( 1 )(b) and that the certificate so issued under the said Article is perfectly valid;

We have set out faJrly elaborately the claim made by the respondents in C.M.P. No. 1300 of 1972 for revoking the certificate c granted by the High Court as well asthe defence pleaded by the appellant to that. appijation. In itfS application before the High Court, the appellant did not specify under what clause of Art. 133 (1) the certificate was prayed for. But froni the material aver ment!l made by .the appellant in its application before the High Court for grant of certificate, it is to be gathered that the prayer J) was substantially on tho ground that the amount or value of the subject matter of the applications befo~ the' Payment of Wages Authorities, in the appeals before the Court of Small Causes, in the writ petition before the High Court and still in dispute in the proposed appeal to this Court was Rs. 20,000/ and upwards ..

This prayer will bring the applicaWm under Art. 13 3 (1 ) (a).

In the alternative, the certificate was prayed for on the ground .E that the case is fit one for appeal to this Court. This prayer will eome under Art. 133(l)(c). The request of the appellant for grant of certificate on the above basis was opposed .by the respondents herein on the ground that the amount or value of the subject matter before all the Authorities, the Court of Small Causes, the High Court and in dispute in the proposed appeal before this Court :t was far below Rs. 20,000/. and as such the matter does not come under Art. 133(1)(a). It was also averred that. there w:as no substantial question of law of any great importance arose for consideration so as to attract Art. 13 3 ( 1 )(c).

After givjng .details l'Cgarding the nature of the claims made by the workmen, boh as over-time wages and weekly off days wages, it was stated that !he G -claim 'fell far short of the sum of Rs. 20,000/ ·.

As the H1gh Court had only adjudicated upon that claim in the wri~ petition. the respondents pleaded tht the judgment of the High Court doe~

not involve directly or. indirectly any claim r question respecting property of the value of .Rs. 20,000/ • or more. - The High Court on October 19, 1967 granted the ceiti&ate 1n tht following terms .: _ - "Cer~ to lSsue under Att. 135 ( i)(b) of the"C<:m!

II . stitutiQtt. Costs in the Supreme Court appeal." ' · ·

BOMBAY GAS co. v. JAGAN NATH (Vaidialingam, 1.) 937-·

/ '

A From the above it )Vill be seen that the High Col!rt has not giVen any indication as to how it issued the certificate under Art. l33(1)(b). But one thing is clear that it did not grant the certi~ ncate on the basis of th~ claim made by the appellant either under

~1. (a) or cl. (c) of Art. 133(1). On the basis of the claims made

by the workmen as over-time wages and weekly off days wages for B the particular periods, the appllant had calculated at the same rate

for even subsequent periods till the qate of the judgment of the High Court and claimed that the amount or value in dispute in appeal to this Court is over Rs. 26822.09 p.

The....appellant had also raised a point in its further affidavit before the High Court that it will have to meet in future also claims from its workmen C and as such it will have to face a recurring liability.

On this basis the appellant has raised a plea tat the judgment of the High

Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000/ - and more. In view of the fact that the High Court has granted the certificate under Art. 133(1)(b), it has to be presumed that it has accepted the appelHmt's plea that a certificate could be~ granted under the said clause when 0 there is a recurring liability, which, if calculated for subsequent years will be at least Rs. 20,000/- and more. The question is whether under circumstance& the certificate granted under Art. 133(1)(b) by the Hig, h-Court,, is proper and valid. ·

It is significant to note that in paragraph 7 of the petitl.on of E appeal filed in this Court, the appellant has statd that it is Jil)t

possible to estimate at a money value the subject matter of dispute in the appeal. Accordingly, it has paid. only a fued court fee of

Rs. 250/- as per the rules.

In the claim statement filed by the appellant before the High Court, it has stated tat Rs. 6675.84 is claimed as weekly off wages bv t:lJ.e respondents Nos. 80 to 11~

and a sum of Rs. 18221.25 is claimed by the respondents Nos. 1 F to 80 as over-time wages.. Thesv two different claims were not consolidated before the Authorities because the claim for weekly off wages was dealt with by the Third Additional Authority and the claim for over-time wages. ws dealt y.rith by the Additional Authority. ·

G According to the Union the claim for ovr-time wages dC>es not exceed Rs. 10660/-. But it is not neooss~ for us to go furthe~ into this aspect as Art.· 133(1)(a) is out of the picture .. . . ' The appellant, relying on the calculat~(>n . filed by it bef9re the High Court, has further stated in its affidavit dated Febrqary 18, H 1972, tiled in opposition to tn~ application for revocation, that on thtl basi~ of the elaim for weekly Qft wages in the sum. of Rs. 6675;84 p,. for one yar. if cal<; ula, ta for Jbe sueqnt years upto February 6, 1967-, tm date of tiw. judgment of the Htgb. Co-qrt ..

93S

. (197'2J3S.C.R.

the amount will aggragate nearly Rs. 30,000/-. S'unilarly'; in res- A pect. of over-time wage§, on. the basis. of the .claim made by tl_ie workmen, if calculated upto February 6, 1967, the amount Will exceed the sum of Rs. 20,000./-.. It will be seen that if the claims made before each of .the_Autorities for the particular periods aloj}e are taken into account, the total cla!ms Will be less than Rs. 20,000/-.

It is really that claim hch was the subject of consideration by the B High Court in the writ petit, ion. Is it open to. the appellant to add to the original claim made by the workmen, the further amount calculated by it till the .date of the judgment of e High Court: and establish that as the total amount so arrived at is not less than Rs. 20,000/-, Art. 133(l)(b) can be invoked on the ground that the judgment of the High Court directly or indirectly involves a c claim in respect of property of the value of not 1ess than Rs. 20,000 1-?

Even on the basis of the valuation worked out by the appellant, it is seen that the claim for over-time wages which was filed befor:e the Additional Authority was valued only at Rs, 18221.25 p. as per the amended claim at 1 J times of wages, though according to the respondents the amo_gnt of claiin does not exceed Rs. 10660/-.

Similarly, the claim for weekly off wages filed by another set, of workmen before the Third Additional Authority, even as per the appellant's calculation was only Rs~ 6675.a4 p.

The claim for over-time wages and weekly off wages, each of them takes separately does not exceed Rs. 20,000/-.

Though the appeals against the decision of the two Authorities were filed before the Court of Small Causes, it is to be not~ that separate appeals were filed by different workmen and the appellant in r~_pect of these two different categories of claims. Though the Court of Small Causes disposed of

all the appeals by a eommon judgment, nevertheless the claim in respect of over-time wap; es -was dealt with apart and different from y the. claim for weekly off wages.

Even before the High Court, though one writ petitiQn. was tiled by all the workmen,-the claims un:der two different headS for -OVer time wageS and weekly off wages

wer~. dealt with parately by the .High .Court. It is not as if that the reasons given by the High Court for upholding the claims for ov~ -time wages automatically resulted in the allowing of the claim for_ weekly off wages alo. In fact entirely different considerations G apply for the two different sets of claims and that has been kept in view by the High Court. Though, ultimately, the High Court has delivered only a common judgment,· nevertheless the decision

relat~ to two differen(sets of claims each having nothing in common with the other. . ~'Therefore, it was not open f.o the appellant to ask this Court to prpceed on the basis that there was only one single :l!ld common claim dealt with by the 'High Court in itS j'udg~ ment. Therefore, there was no question of any consolidation of all the claims before the High Court .. ·· In this view it Wilfbe seen

BOMBAY GAS CO. V • .JAGAN NATH (Vaidialingam, J.) 939

A that even according to e. calculations made by the appellant, the value of the subject mt4:r of the ch:i.im with respect to over-time wages cail. only be the.sru.ne as was before the Additional Authority, namely, Rs. 18221.25 p: which is less than Rs. ~0,000/-. Similarly, the amount or value of tl}e claimwhich was adjudicated upon by the. High Court in respect of weekly off wages was also of the B same value as Rs. 6675.84 p. as was the case before the Third Additional Authority, which-d"aim is also less than Rs; 20,000/-.

Therefore, considering the matter from this point of . view, it is clear that the value of tihe subject matter of the claim before the High Court in respt of each of these matters was less: than Rs. 20,000/-.

C The appellant, as mentioned earlier, has calculated at the same rate as cJaimed for over-time wages and weekly wages. for subsequent years upto the date of the _judgment of the High Court and has stated that so calculated the amount or value of the subject matter of the claim relating-- to weekly off wage~ exceeds Rs. 30,000/-. Similarly, the amount or value of the subject matter D of the claim of over-time wages exceeds s. 20,000/- and hence it is stated that the judgment of the High Court involves d.iNctly or indirectly a claim o_r question respecting property of the value • of Rs. 20,000/- and more ..

Mr. M. C. Bhandare, learned counsel for the respondeqts,. in support of the application filed for revocation of the certificate ha~

urged that before the H_igh Court there was no claim or question arising for consideration excepting the subject nl.atter of over-time wages and weekly off wages claim for a particular period by the workmen. No claim for any further period has been made by them; nor did it arise fo-r consideration before either the Authori- . ties, the Court of Small Causes. or the High ourt. Nor does such F a claim arise for consideration in the appeal to this CQ].lrt. Therefore, he pointed out that thy judgJI}enu of the High Court does not either, d_itectJ y or indirectly mv<;>lve any ~Iaim apart froin -wa.at. was

the sub.fecttter of dispute_. between the p)ltties: e High C¢-qrt not having granted the ertificate under A.tt.: 133(1)(a)~ it foHoWs that the amount or val~ of the subject matter of the dispute befOre it or on appeal to thts Court WliS not Rs~ 20,000/- or".jti~:V~.

G Clause (c) of Art. 133(1) also stands excluded as~ High .Court

has not granted the certifitate on the ground that the caeds' a fit one for appeal to this Court, and asMr. Sorabji, learned coill, iiei for the apj)ellant, has represented that h~ is' not relYing bri tfrat .clause. In order to attract Art. 133(1)(b), under which ~:certi-

. ficate has been granted,.the essential reqment is that thre must be inv9Iv~ in the appeal to this Cou~ a.' laim or questi()n resPecting property of the value of not less tba~(Rs; 20,000/- miufruti~ to or other than Jhe subject matter of the dispute. .In .lflis ease this conditiOn is not satisfied. ·: · ·

[1972] S.C.R.

In support of the alx:>Ve proposition, Mr. Bhandare, referred us A to the decision of this Court in Chhitarmal v. M/ s Shah Pannalal Chandulal (1). It is laid down in that decision as follows. :

"The variation in the language used in cls. (a) and

(b) of Art. 133 pointedly Jllghlights the conditions which attract the application of the two clauses. Under cl. (a) what is decisive is the amount or value of the subject-! matter in the court of the first insance and "still in dispute" in appeal to the Supreme Court : under cl. (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from.

The expression . "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money.

But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no ciaim or question raised respecting property other than the subject-matter, cl. (a) will apply; if there is mvolved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000/ - in addition to or other than the subject matter of the dispute c1. (b) will apply." ·

. From the facts stated in the above decision it is seen that the appellant therein pleaded on an alternative basis that the claim in E the appeal exceeded Rs. 20,000/-. That alternative claim was on the basis of adding interest at 6% per annum to his original claim as awarded by the trial court whose decree he wanted 1Jo be restored in the appeal. That againwas rejected on the ground that the original claim of the appellant therein, which formed the: subject-matter of dispute before the trial court, was itself the subject F of 9, ispute in the appeal and therefore by adding interest to th~ original claim, it was not open to the appellant to plead that the valuation in the appeal exceeds Rs. 20,000/

From the decision, cited above, the following principles emerge:

(l) In order to attra, ct Art. 133(J)(b) the property respecting which the claim or question: arises, must be property in addition to or other than the subject-matter of the dispute;

(2) If in the appeal to this Court there is no ques. tion 9r claim raised respecting the property other than tl; le sut.>.iect-matter~,. then cl. (a) of Art. 133 (1) wlll apply.

, ..

BOMBAY GAS CO. v. JAGAN NATH ( Vaidia/ingam, f.) 941

(3) Adding future interest or possible further claims to the original value of the subject-matter till the date of the judgment of the High Court and which items are not the subjeet of , consideration by the High Court will not enable . a party to plead that the claim so calculated exceeds Rs. 20,000/-. This is not permissible as the ad- B dition of imerest or calculation of further possible claims arc all related only to the original subject-matter, which

is still in dispute.

In A. V. Subramania Ayyar v. Sellammal(i), under s. U <J of the Code of Civil rocedure it was pleaded that though the C subject-matter of the dispute in the court of first instanCe was Jess

than Rs. 10,000/-, the final decree of the High Court involved a claim to property of over Rs. 10,000/- in value. This value at the relevant time was for purposes of appeal to the Judicial Committee of the Privv Council. The appellanr. added the mesne protits, which according .to him must be considered to have accrued subsequent to the date of the original claim made in the suit. So D uddiog, the ppe.llant therein pleaded that: the decision of the High Court must b.e considered as involving a claim to property of over Rs. 10,000/~ in value.

Though, if the amount of mesne orofits wus added the value was over Rs. 10.000 I-, the High Court re.iected the p!ea on the ground that the claim for mesne profits has not been awarded by the decree, nor was it the subject matter of dispute in E the appeal. It was further held that the decision of the High Court has not affected the rights of the appellant therein in any prooerty other than the one that was the subject matter in dispute. In this view, it was held tha~ the judgment of the High Court did not directly or indirectly involve any question to any prooertv other than the subject maHer of dispute. On this ground, certificate waS F refused.

Mr. Sorabii, learned counsel for t.he appellant, acceoted the vrincrple that to attract Art. 133(1 )(b) the orooerty, referred to therein, mc.st be property in addition to or other than the subiect matter of the dispute. In fact, he cannot but acceot this orinciTl]e

a~ it has been so laid down by this Court in Chhitarmal v. M 1 s G Sh(Jh Panna/a/ Chandulalf~). The counsel did not relv on Art.

133 ( i)(~) or (c) Ior the ouroose of this aoDrat He nointe-d out that as laid down by this Court in th~ df>cision, refl"rred to ahoveth~ .expression "property'' in Art. 133(l)(b) would al"o take ;~ claims re!Wrdinl! monev. He pointed our. that t?e aooellant in this case is oreiudicPd hv th~ jud(Tment of the High Court as it will ha?e 1:1 to face recurrin!! liabilitv in future at the hand~; of its worlrmn. on

th~ basis of the. clllint~ ~1~~~ bv th.Pm as ove'r-time wa(7~" and ''"'lr:ly olf wages. It IS that hbthty whtch the appellant will have to face

1, l L.~. 1<J Madras 843. 14-L!O(I Sup Cl/72

.942

[1972] 3 S C R

A and wbich llas been imposed upon it to its prejudice by the , iudgment of the High Court, that is souht to be got rid of in the ap.peal to this Court As the recurring liability or cla,1m will be more than Rs. 20,000/- .the matter squarely falls unaer Art. 133(I)(b) and the certificate granted by the High Court is correct.

He further pointed out that it is not necessary that the jud~uent of the High Court should directly involve othe.r properties, including money. Clause (b) of Art. 133(1) will be attracted even if the judgment indirectly involves a claim in respect of properly or money of not

lec; th'ln Rs. 20,000/-. He referred us to the decision in Meghji

1A1rhamhi anrl Brothers v. Furniture Workshop(l) where the Judicial Committee had to construe Art. 3(a) of the Eastern African (Appeal to Privv Council) Order in Council, 1951. The tatter pari of this Article was as follows : C

. " .. , ... or where the appeal involves directly or indirectly some 'claim or question to or resoectin~ property or some civil right amounting to or of the said value or upwards.''

The Judicial Committee held that the value referred to in the said Article must be looked at from the ooint of view of the aooel- ·

lant.

It is no doubt true that the value has to be considered from the point of view of the appellant. The orooerty may also include money. But it is essential under Art. 133(1)(1>) that the .claim must. be in respect of property 01\money which prooerty or money must be different from the subiedt matter of theIitiation. Therefore, 'E the decision of the Judicial Committee is no! of much assistance lO the appellant. ' . . -Mr. Sorabji, then referred us to the decision of the Full Bench of Andhra Pradesh High Court in Smt. Rajah Kihore pevigaru v.

Bhakara Gouta Chorani and others(2).

Dealing with cls. (a) r and (b) of Art. 133(1) the High Court says :

"In our opinion, clause (b} of Art. 13 3(1 )'is intended to meet a .situation essentially different from that arising under clause (11). Under clause (a) we have to look at the . value of the reliefs obtainable in the suit. arid in the aP,.- peal. . Under clause (b) we have to look Rt the effect of the ji.; dgment appealed agaimt from the point of view of the aMellant.

A thing is said to be involved in another wh, en it is a necessary resultant of that other. (Stroud's Jurlicial Dictionary). The matters adjudtcated uoon in the iudgment aooealed from may have fa:r reaching conse, uence~ detrimental to the orooertv of the , apoellant, although they were not comprised in the' cause of action

(l)JPS4J App:al Case->.80. . (2~ A.l.R. 1960 A.P. 286.

BOMBAY GAS CO. v . .JAGAN NATH (Vaidia/ingam, J.) 943

of the plaintiff and cannot be regarded as being "still in dispute'' on appeal::

From the facts in that case it is clear that the High Court was dealing with the que9tion whether the decision of the High Court wlll have far reaching effect on the other properties of the appel- B !ant therein, though those properties were not the subject-matter of dispute in the appeal. Tpis decision in lac<, emphasises quite rightly that to attract cl. (b) of A~C 133 ( 1) one has to look to the effect of the judgment sought to be. appealed against on other properties which are not the subject matter of dispute and are not comprised as such in the litigation.

C Similarly, the decision of the Madras High Court in Commissioner of Income-tax Madras v. S. L. Mathias(!) is also of no assistance to the appellant. The facts of the said decision show that the High Court was of the view that there is a difference of opinion between the High Courts on the effect of the Proviso 2 to s. 4(2) of the Income-tax Act, 1922. The High Court w.-.s of the 0 view that "there can be no doubt that the question involved is a substantial question of law", and on this bais granted a certificate of fitness. It is clear that the High Court granted the certificate on the_ground that there was a substantial question of Jaw involved in the aopeal and as such it was a fit one for appeal to the Judicial

Committee. ·

Mr. Sorabji then referred us to the decif>ion of the Madras High Court in G. Appuswamy Chettiar and another v. -R. Sarangapani Chettiar and others( 2 ). In that ce the suit was for a declaratory relief regarding the invalidity of the adoption of .a particular' person. The certificate was asked for on the ground that the decision of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000/- and more.

It was accepted by the High Court that if leave to appeal was not granted ta the petitioners therein, they will lose an estate worth more than Rs. 68,000/- though the estate itself was not directly .

th~ sub.fect matter of dispute either in the trial court-of the High Court. The Hih Court further held that in a suit for a declaration of adoption a claim made by the reversioners to the property C cannot be considered to be too remote. It is on this ground that the certificate was granted. It is clear from the judgment of the

Hih Court that the final decision of the Hi!th Court in that case

did affect the righ's of the petitioners therein -to properties of the value of more than Rs. 68,000/-. It is on that basis that the certificate was granted unde~ Art.l33(1 )(b).

H ... In our opinion, tho decisions relied on by Mr .. Sorabji do not suoport his contention that th~- _certificate granted bv the High

(I) A.l.R. 193S M1d. 3S2 (tJ (1965) (I) I.L.R. Mad. 361.

94~

SUPREME COURT REPORTS [1972] 3 s.c.R.

Court, in the case before us, under Art. 133(1)\b) is proper and valid. In fact the said decisions clearly bring out the distinction between cls. (a) and (b) of Art. 13 3 (1) .and they lay down that only when the judgment or final order affects property which is not the subject matter of the litigation that Art. 133(1)(b), will apply.

Those decisions are in conformity with the princioks laid down by this Court in Chhitarmal v. M/s Shah Pannalal Chandulal(l) .

It is clear that interest, unless granted by the decree of the trial court, cannot be notionally added to inflate the value of the .claim in the appeal so as to make it appear that on the date 6f the judgment of the High Court rt.'fJ.e value is not less than Rs. 20,000/-.

On the same principle, we have already pointed out that mesne profits, which have not been decreed by the trial court, cannot be (; added to the original claim made in the suit, so as 1jO enable a party to plead that the value in the proposed apoeal on the ~; late of the judgment of the High Court is more than Rs. 20,000/-.

We may refer to the decision of the Judicial Committee in Moti Chand and others v. Ganga Parshad Singh and another(2) where interest awarded under the decree of the trial court was taken into account for the purpose of considering the value in the appeal befor~ the High Court. The suit was for recovery of a certain amount together with interest. The trial court passed a decree for Rs. 9496/- and awarded interest to the plaintiff at Rs. 570/- per year on the decreed amount until realisation.

By the time the High Court's decree was made, the amount at issue had reached toRs. 10636/- with further contingent increment. Under s. 596 of the old Civil

Procedure Code, certificate was asked for from the High Court for leave to appeal to the Judicial Committee. The High Court declined to grant the certificate on the ground that the amount or

l(alue of the subject matter of the suit in the court of first instance

was not Rs. 10,000/- as required by the said section. thoui!h the amount or value of the matter in dispute on apoeal to Her Majesty F in Council was above Rs. 1 O, OuO, I.

No doubt, his decision is not. on the question regarding matters covered by cl. (b) of Art. 133(1). But we are only referring to this decision to show that intetest can be taken into account .. for the ourpose of considerin~ the value in an appeal, provided the decree itself has awarded interest.

We may also refer to the decision of the Judicial Committee in Surapati Roy & others v. Ram Narayan Mukherjf & otherse). ln that dci!'ion the question arose under s. 110 ~)f the Code of Civil Procedure 1908 regarding the validity of the certifkate granted by the High Court. Thouyh the rent claimed in the suits was less than Rs. 10,000/ - the High Court had granted a certificate of fitness on the ground that the value of the subject matter

-·~-·--- .

(I) (1965]2 S.C.R. 751. (2) 29 Indi::n Appeals 40.

(3) 50 Indian Appeal> 155.

BOMBAY GAS CO. v. JAGAN NATH (Vaidia/ingam, /,) 945

A was over Rs. 10,000/-. The objection taken before tlie Judicilil • Committee regarding the validity of th.e certificate on the ground that the subject matte_r was below the appealable value was re- .• jected as follows : ' ' " ...... The subject matter in pute relates to a .n recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order."

It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in res1Ject of the properties in question and it was on that basis C that the certificate was held to be valid.

Both the above decisions of the Ju . .'icial Committee have no application to t!, e facts C:~ the present case on hand. The princiole that a claim made by oe party and resisted by another is ordinarily the subject matter of the dispute in the trial court and continues D to be the subject matter in the Appellate Courts.

In the case . before us the claims for over-time wages and weekly off wares before the Auhorities ..VCre for a specified period. The claims for the identical periods were the subject matter in the appeals befoe the Court of Small Causes. The Hf!!:h Court h::d also to consider the correctness of the decision of 4he Court of Small Causes regarding the claims made by tf!e workmen for the oarticular periods. The F. apoellant was not entitled to notionally add on to the amount originally cJaimed. by the workmen for partipular periods, any further amounts on the ground t1iat they must be cosidered to have accrued due to th~ workmen till the date of the judgment of the High Court. If t1le subsequent additions made to the ori2inal

claim are accepted as correct, then the position would be that if :F it is an ordinary civil litigation, the subiect matter of the suit and its value would vary with the lenh of time during which the suit may be pending in tM Courts.

Such a oosition is not warranted by the provisions qf Art. 133 (1) as laid down by this Court in Chhitnrml'fl v. M I~ Shah Pann'alal Chanrlulal (1). If in the proposed appeal to. this Court there is no claim or question raid

respectin~ prooertv, other than the subject matter of dispute, G dause (a) of Article 133(1) will aooly.

That clause has not-been invoked in this case by the High Court.

It is not possible to accept the contention of Mr. Sornbii that as the appellant will have to face from its workmen in ~· future cl•1ims similar to the one recoenised bv the Hhth Court, .there ls H .involv"'d a cJRim or OllPtion in rt;~""ct of propertv of th~ value of riot less than Rs. 20,000/· in addition to or other than . th& .. . o > {H6SJ 2 s.c.R. 7~1.

946 SUPREME COUJ.T lEfOitTS [1972]3 s.c.R.

subjt matter of appeal.

In the first place, this contentiqn pr<r A cceds on tne assumptiOn that the judgmeni of the High Court directs tue appellant to pay m IULUre-amiJums not less than Rs. 20,000/-.

T11is assumption 1s oas1caHy erroneous, as there is no such direction given by the High Court. The payment ot wages as for over-time , or weekly off days will depend upon severaL circumstances. lf over time work is not taken, then no payment need be made. lf B over time work is_ taken for a lesser time, then the amount to be paid will also be less.

. _In our opinion, this is not a case where the decision of the High Court, apart from dealing wtth the subJect malter in dtsputc before it, has the effect of affecting the rights of the appellant regarding c oilier properties, including money. We may give an instance where

a final judgment may have an impact or affect properties, other than the sut>ject matr in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject matter of the suit may be only of the value of Rs. 1500/- but the decree granted by the High . Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000/..

D so as to give vacant possession of the Jand in accordance with the decision of the High Court. In such a case, though the valu.~ of the subject matter iri dispute before the High Court may be only Rs. 1500/-, the judgment, can be considered to involve indirectly a claim or qut:stion respecting property (in this case the buildings) of the value oHnot less than Rs. 20,000/ ~.

Such a case may E. attract An. 133(1)(b). The position before us is entirely different.

The judgment of the High Court has only adjudicated upon the subject matter of the specified claim. of the workmen which was, as mentioned earlier, for a particular period. That iudgm-!n1 does not involve directly or indirectly apart from the subject matter of the writ petition, any claim or question resoecting property or F money of the value of Rs. 20,000;- and more. In this view. we are of the opinion that the certificate granted by the High Court under Art. 1 33(1)(b) is not ; valid and proper.

In the view that-we take_ that the certificate granted by the High Court is not valiJ and that the appeal l.lrot•ht on such a G . certificate is not sustainabk, we do not express any opinion on the merits, though arguments were h.!ard on lhe same.

As the' certificate issued by the Hi11:h Court under Art. 133 (1)

(b) is not orol>er and valid, the only course open to us is to tevoke the crtficate and set aside the order of the High Court H grantine; the s'anie.

The result is, the apoeal has become unsustain!tble. a~ it has been brou2ht to thi~ Court on a certific"te whi9h, as held by us, has not been properly and validly ~.ranted.

BOMBAY GAS CO. V. JAGAN NATH (Vaidia}ingam, J.) $47

In the result, C.M.P. No. 1300 of 1 '}72 is allowed, and the appeal is held to be not maintainable and as such dismissed. lnt C.M.P. No. 1300 of 1972 the respondents will be entitled to costs.".

In the appeal here will be no ord•.!r as to costs. ,

K.B.N.

Appeal dismissed.

BOMBAY GAS CO. LTD

JAGAN NATH PANDURANG AND ORS

March 22, 1972

I. D. DuA, JJ.

Constitution of India

Article 133( 1)(b)

article 133(1)(b)

article 13

Payment of Wages Act 1948

article 133

Illey

article 133

article 133

article 133(1)(b)

article 133(1)

article 13

G Soil Sorabji

K. D. Mehta

P. C. Bhariari

C. Mathur

M. C. Bhandare

Sunanda Bhandare

K. Rajendra Chowdhary

H Vaidtalingam

Court of Small Causes, Bombay

s. 15

Payment of Wages Act

Industrial Tribunal, Bombay

March 30, 1950

October 13, 1962

s. 18(3 )

s. 15

April 26, 1963

s. 18(3)

February 11, 1965

BOMBAY GAS CO

V. JAGAN NATH

Bombay High Court

Arts. 226 and 227

Court ot Small Causes, Bombay

t.Qe Court of Small Causes, BombayJ

Art. 133(1)

Art. 133(l)(b)

February 6, 1967

Art. 133

Art. 13

Art. 133(l)(c)

Art. 133(1)(a)

Art. 13

October 19, 1967

Art. 133(1)

Art. 133(1)(b)

Art. 133(1)(b)

Art. 133(l)(b)

s. 20

M. C. Bhandare

Art. 133(1)

Sorabji

Art. 133(1)(b)

Bhandare

Art. 133

Supreme Court

Art. 133(J)(b)

Art. 133

Sorabii

Art. 133(1 )(b)

Art.

133

Art. 133(l)(b)

Art. 133(I)(b)

Art. 133(1)

Meghji

Art. 3(a)

Art. 133(1)(1>)

Andhra Pradesh High Court

Art. 133(1)

Art. 13

Stroud

Madras High Court

s. 4(2)

Income-tax Act, 1922

SUPREME COURT REPORTS [1972] 3 s.c.

94~

SUPREME COURT REPORTS [1972] 3 s.c.

Art. 133(1)

Art. 13

Art. 133(1)(b)

s. 596

Procedure Code

Art. 133(1)

s. 110

Code of Civil Procedure 1908

Art. 133

Article 133(1)

Sornbii

Art. 1

Art. 133

BOMBAY GAS CO. V. JAGAN NATH

Vaidia}ingam,