Full Judgment
Wanchoo, C.J.
1. This is an Ijlas-i-Khas appeal by Udaimal and has come up before us in view of the provisions of Ordinances XL of 1949 and XII of 1950.
2. The case out of which this appeal has arisen was a simple suit for arrears of rent and ejectment. A second appeal came to the High Court of the former State of Jodhpur and was decided in favour of the defendants. Thereupon, there was an application to that Court for leave to appeal to the Ijlas-i-Khas, which came up before another learned Judge and that learned Judge granted a certificate for leave to appeal under Rule 19 of the Ijlas-i-Khas Rules of the former State of Marwar. Rule 19 provides for appeals in cases in which the amount or value of the subject-matter of the suit in the Court of first instance was Rs. 4000/- or more, and the amount or value of the subject-matter in dispute on appeal to His Highness was also Rs. 4000/- or more, or the decree involved directly or indirectly some claim to, or some question respecting property of like amount or value.
3. The learned Judge who gave leave was of opinion that the suit related to property the value of which was Rs. 30,000/- or so and, therefore, the applicant before him was entitled to leave. We are of opinion that this view of the learned Judge is wrong. The suit was for arrears of rent and ejectment and the defendants admitted the tenancy and also their liability for rent. They only challenged their liability to ejectment. Therefore even if the house was valued at Rs. 30,000/- the decree did not involve directly or indirectly some claim to, or some question respecting, property of the value of Rs. 4000/- or more. The learned Judge was, therefore, wrong in giving a certificate under Rule 19 of the Ijlas-i-Khas Rules, the valuation in this case being only Rs. 120/-.(4) Learned counsel for the appellant urges that though the learned Judge who gave leave specifically said that the applicant was entitled to leave under Rule 19, this Court should consider it as granted under Rule 18(c) of the Rules, because in a case of this kind that was the only provision under which certificate for leave to appeal could be granted. It is true that in this case the High Court could only grant a certificate for leave to appeal under Rule 18 (c) but the learned Judge who dealt with the matter specifically mentioned that he granted leave under Rule 19. We are not prepared to hold that this must be taken to be a certificate under Rule 18(c). There is nothing indeed in the order of the learned Judge to show that it was even urged before him that it was a fit case for appeal. Further there is nothing to show that he applied his mind to the circumstances which should be present be-fore he granted leave under Rule 18(c).
5. The last point that is urged is that the leave having been granted by the High Court, the appeal should be heard on merits. So far as that is concerned, it is enough to say that there is ample authority of the Privy Council to the effect that if leave has been wrongly granted under Section 109(a) and (b) of the Code of Civil Procedure which correspond to Rule 18(a) and (b) of Marwar Rules, the Privy Council will not hear the appeal on merits. It may be mentioned that Rule 19 refers to leave granted under B. 18 (a) and (b).
6. We are, therefore, of opinion that leave should not have been granted in this case and no appeal, therefore lies to the Ijlas-i-Khas. The appeal is hereby dismissed with costs.