Abdul Hamid J:

The respondent is asking the Court to grant conditional leave of appeal to His Majesty the Yang di-Pertuan Agong against the order of the Federal Court made on 2 February 1979, and a stay of execution thereof until the appeal is heard and disposed of.

Mr. RR Chelliah, Counsel for the respondent, submitted that the appeal involves subject matter respecting property of value exceeding $25,000. and in so far as stay of execution this is necessary in order to maintain the status quo and not to make the appeal, if successful, nugatory.

Briefly, the facts are that the respondent is in occupation of the whole of the ground floor of premises known as 743 Penang Street, Penang, and carrying on there an eating shop under the name and style of Sri Kaliaman Vilas Restaurant since July 1974, under a licence in his name.

The appellant is the sub-tenant of the whole of the said premises and also the owner and licence holder of an eating shop on the ground floor called Nava India Restaurant prior to August 1971. The respondent occupied the said ground floor on April 1970, purportedly as sub-tenant and carried on the said business of Nava India Restaurant as lessee of the appellant.

Following a dispute between the respondent and the appellant a writ of summons was filed in the Penang High Court by the respondent claiming that he was tenant of the appellant in respect of the same.

Judgment was given by the Penang High Court on 30 June 1978, in favour of the respondent. On appeal to the Federal Court it was ordered that the respondent deliver to the appellant vacant possession of the said ground floor, the eating shop and restaurant business; pay the appellant sum of $8,500 as agreed mesne profit for the period up to 31 May 1978, and also mesne profit at the rate of $300 per month from 1 June 1978, until delivery of possession.

In his submission Mr Chelliah referred to sub-section (1)(a)(ii) of s. 74 Courts of Judicature Act 1974 , stating that the words "like amount or value" which apply to claim or question to or respecting property refer to amount or value of $25,000 or upwards and an appeal shall therefore lie from any final judgment where the appeal involves directly or indirectly, property, not claim or question, of the value of $25,000 or upwards.

In support of his contention Mr. Chelliah cited the case of Arieh Zvi Lipshitz v. Haim Aron Valero [1948] AC 1, 5 and also the case of Meghji Lakhamshi and Brothers v. Furniture Workshop [1954] AC 80, 81 where at p. 81 it is held that -

Article 3(a) of the Eastern African (Appeal to Privy Council) Order of Council, 1951, provides that an appear shall lie as a right from any final judgment of the Court of Appeal 'where the matter in dispute on appeal amounts to or is of the value of STG500 sterling or upwards or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the said value or upwards.'

Under whichever limb of art. 3(a) of the Order in Council a case may fall, the 'value' must be looked at from the point of view of the appellant. The present case fell within the latter part of the article which dealt with 'some claim or question to or respecting property ... of the said value or upwards,' and on the true construction it was the value of the property, not the value of the claim or question, which was the determining factor. Looked at from the angle of the appellant landlords, the value of the property, vacant possession of which they were claiming, was correctly taken on a capital value basis, which exceeded STG500, and therefore under the article an appeal lay as of right.

Meghji Lakhamshi and Brothers v. Furniture Workshop, supra, was applied in the case of Becker v. Marion City Corp. [1976] 2 WLR 728, 736-737 Lord Edmund Davies delivering the judgment of the Board had this to say -

As their Lordships see it, the problem presently calling for a solution is whether this