Skip to content


P.V. Rao Vs. Ahmed Haji Noormahomed Latiff - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 36 of 1948 and Miscellaneous No. 88 of 1948
Judge
Reported inAIR1949Bom125; (1948)50BOMLR711
AppellantP.V. Rao
RespondentAhmed Haji Noormahomed Latiff
DispositionAppeal allowed
Excerpt:
.....of law called for judicial orders and not executive orders. in our opinion, therefore,the learned judge, with respect to him, was clearly in error in not accepting the order ex facie, but permitting the petitioner to go behind the order and to allow the petitioner to challenge the order and to call it in question contrary to the provisions of section 59, sub-clause (2), of the government of india act. that decision would be binding on us because it is a decision of the divisional bench, but that decision is clearly explicable on the ground that the order made by mr. justice pontifex was clearly wrong in not conforming to the mandatory provisions of order xlv, rule 15, but his act was ministerial, and in his opinion no appeal lay as the order that he had passed was not a..........is the order of the government of bombay and not his order the petitioner then applied to the learned judge that he should be permitted to have the deponent, viz., mr. rao, cross-examined under rule 180 of the high court rules, and that rule is in these terms:upon any motion, petition or summons, evidence may be given by affidavit, but the court or a judge may, on the application of either party, order the attendance for cross-examination; of the person making such affidavit.2. the advocate general for the appellant and the respondent to the petition has contended that the order made by the learned judge is in excess of his jurisdiction and that it was not open and competent to the learned judge to question the order in view of the mandatory provisions of section 59 of the.....
Judgment:

M.C. Chagla, C.J.

1. This is an appeal from an order made by Mr. Justice Bhagwati granting the application of the petitioner to order the attendance of Mr. P.V. Rao for cross-examination under Rule 180 of the High Court Rules. The facts briefly are these. An order for requisition was served on the petitioner under the Bombay Land Requisition Ordinance No. V of 1947, and this order has been challenged by the petitioner and he has prayed for a writ of certiorari against Mr. P.V. Rao. The order is signed by Mr. P.V. Rao as Assistant Secretary to the Government of Bombay, Health and Local Government Department, but the order in terms says that the order is issued by the order of the Government of Bombay. Now, one of the contentions taken up by Mr. Rao is that the petition is misconceived inasmuch as the order is made not by him, Mr. Rao, but by the Government of Bombay, and as the petitioner seeks to have a writ of certiorari issued against him personally, the petition cannot succeed. On the petition, affidavits were made by the parties and Mr. Rao has made an affidavit setting out his contentions and alleging that the order in question is the order of the Government of Bombay and not his order The petitioner then applied to the learned Judge that he should be permitted to have the deponent, Viz., Mr. Rao, cross-examined under Rule 180 of the High Court Rules, and that rule is in these terms:

Upon any motion, petition or summons, evidence may be given by affidavit, but the Court or a Judge may, on the application of either party, order the attendance for cross-examination; of the person making such affidavit.

2. The Advocate General for the appellant and the respondent to the petition has contended that the order made by the learned Judge is in excess of his jurisdiction and that it was not open and competent to the learned Judge to question the order in view of the mandatory provisions of Section 59 of the Government of India Act. Now, Section 59 of the Government of India Act provides that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. Therefore, if the Government of the Province acts at all and its acts are to be clothed in the form of an order, that order can only be issued in the name of the Governor, and Sub-clause (2) provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules to be made by the Governor, and |n this case it is not disputed that according to the rules framed the proper way of authenticating an order made by the Government of Bombay is for the Assistant Secretary to the Government to sign that order; and Sub-clause (2) further provides that the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Therefore, as soon as the order is tendered and the order is expressed in the name of the Governor and duly authenticated as provided by the rules framed under Section 59, it is not open to a Court of law to question the authenticity of the order to the extent that the order is the order of the Government of Bombay. Ex facie the order must be accepted and the Court must proceed on the assumption that the order is an executive order issued by the Government of Bombay. What the learned Judge, with very great respect to him, has done is that he has permitted the petitioner to call the order in question by getting an order from the learned Judge that Mr. Rao should be put in the witness-box to be cross-examined for the purpose of ascertaining whether the order was made by the Government of Bombay or not. Now, the law provides that the only way of ascertaining whether a certain order was made by the Government of Bombay or not is as laid down in Section 59 of the Government of India Act. There is no other mode by which that fact can be ascertained. What the learned Judge has done is that he has accepted the application of the petitioner whereby he wants to ascertain whether the order was in fact made by the Government of Bombay or not, by a method which the law does not permit. There can be no doubt that that is the only reason why Mr. Rao is to be submitted to cross-examination, because the learned Judge in his judgment in terms says:

I have come to the conclusion that I should give the petitioners an opportunity of proving by cross-examination of the respondent P.V. Rao that the orders complained of were not really the orders made by the Government of Bombay in exercise of the powers vested in them under the Ordinance No. 5 of 1947 but were orders really issued and passed by the respondent P.V. Rao purporting to do so in the name of the Government of Bombay.

3. It is to be noted that the petitioner in his petition has not challenged that Mr. Rao in making the order was acting in his capacity as Assistant Secretary to the Government of Bombay. It is not suggested that the order was an order personally made by Mr. Rao otherwise than in his capacity as Assistant Secretary to the Government of Bombay and therefore that particular question does not arise before us. Mr. Khambatta has argued that it is the contention of the petitioner that the order made is not an executive order but a judicial or a quasi-judicial order and for that purpose he is entitled to cross-examine Mr. Rao. That, in our opinion, is an entirely fallacious contention. Whether a particular order is an executive order or not is to be determined according to the terms of that order. This order is purported to have been made under Section 59 of the Government of India Act. It is made in the name of the Governor, it is authenticated as provided by Sub-clause (2), and therefore there can be no doubt that it is in pursuance of an executive action that this order has been made. It was open to Mr. Khambatta to contend that the orders to be made under the Requisitioning Order have to be judicial orders and not executive orders, and inasmuch as this is an executive order it is a bad order. -But that is something very different from challenging this order itself as not an executive order. It is not open to a party to challenge a particular order, which the Government of Bombay chooses to issue as an executive order, as being not an executive order but some other order. Whether the Government of Bombay is entitled in law to issue an executive order or not is entirely a different matter, and Section 59 does not in any way take away the liberty of the subject to challenge orders of Government as being bad or invalid or ultra vires on the ground that certain provisions of law called for judicial orders and not executive orders. In our opinion, therefore,the learned Judge, with respect to him, was clearly in error in not accepting the order ex facie, but permitting the petitioner to go behind the order and to allow the petitioner to challenge the order and to call it in question contrary to the provisions of Section 59, Sub-clause (2), of the Government of India Act.

4. This appeal has raised a very important question, whatever might be said as to the merits of the order made by Mr. Justice Bhagwati, whether that order is subject to appeal. The order has been made by a learned Judge sitting on the Original Side and the question that falls to be determined is whether this order is a judgment within the meaning of Clause 15 of the Letters Patent. There is a long and checkered history as to the construction of Clause 15 of the Letters Patent. But now our High Court has accepted the test applied by the Calcutta High Court, and in order that an order of the Judge should be a judgment within the meaning of Clause 15 it must affect the merits of the question between the parties by determining some right or liability. The Advocate General has asked us to go a step further and to hold that even though Mr. Justice Bhagwati's order may not be a judgment within the meaning of Clause 15, still if the order is wrong and likely to do substantial injustice, we have inherent right to sit in appeal from that order. We are unable to accept that argument. Appeals are creatures of statute and a Court can never have an inherent right to hear an appeal from another Court unless the law so expressly provides, just as a litigant has no right of appeal from a decision which he obtains from one Court to a higher Court unless the law expressly gives him that right. In support of his argument Mr. Amin relied on a decision of this Court in Jaibhai Cursetji v. Jerbai Hormusji I.L.R. (1936) Bom. 145 : 32 Bom. L.R. 1301 That was a decision of Sir John Beaumont, Chief Justice, and Mr. Justice Madgavkar, and in that ease the question arose as to who had the right to perform the Navjote ceremony of a minor Parsi girl. The contending parties were the natural father and the maternal grandmother, and Mr. Justice Wadia on a chamber summons held that the maternal grandmother was entitled to perform the ceremony. When the appeal came before the division bench, a point was raised as to whether the appeal was competent, and Sir John Beaumont at p. 148 says that apart from Clause 15 of the Letters Patent, the Court has inherent jurisdiction to hear an appeal in a matter of that sort affecting a ward of the Court, The learned Chief Justice thought that as the question was of a minor, even though the decision given by Mr. Justice Wadia in Chambers may not fall under Clause 15, still the Court had an inherent jurisdiction to hear an appeal from that order. With very great respect to the learned Chief Justice, we cannot accept that view of the matter. That decision would be binding on us because it is a decision of the divisional bench, but that decision is clearly explicable on the ground that the order made by Mr. Justice Wadia finally determined the rights of the minor to have the Naviote ceremony performed by the maternal grandmother and not by the father. On that ground it is difficult to see why the decision of Mr. Justice Wadia was not a judgment within the meaning of Clause 15. Mr. Justice Madgavkar also seems to have taken the same view as the view taken by the learned Chief Justice, and he says that the Court can, in its inherent jurisdiction and following the practice on the Original Side, consider the propriety of the order appealed against. With very great respect, we do not know of any practice on the Original Side by which appeals are entertained because of any inherent jurisdiction that the Court has independently of Clause 15 of the Letter Patent.

5. Then Mr. Amin has relied on a decision of the PrivyCouncil in Hurrish Chunder Chowdhry v. Kali Sundari Debia . In that case the Privy Council had delivered a certain judgment in an appeal which came before it and the decree was sent down to the trial Court for execution, and Under Section 610, corresponding to Order XLV, Rule 15, a petition was presented to Mr. Justice Pontifex for execution of the decree passed by the Privy Council, and Under Sub-clause (2) of that Order it was the duty of the Court to transmit the order of His Majesty in Council to the Court which passed the first decree appealed from or to such other Court as His Majesty in Council might direct, and the Court to which the order is so transmitted has to execute the decree of the Privy Council. Mr. Justice Pontifex in that case refused to accede to the petition of the party in whose favour the judgment was delivered by the Privy Council and dismissed his application. The matter went in appeal and the question arose whether the appeal lay. A Full Bench of the Calcutta High Court considered the matter and the learned Chief Justice took the view that Mr. Justice Pontifex was clearly wrong in not conforming to the mandatory provisions of Order XLV, Rule 15, but his act was ministerial, and in his opinion no appeal lay as the order that he had passed was not a judgment. The two other Judges took the contrary view. When the matter came before the Privy Council, they held that an appeal did lie. The Privy Council took the view that the decision of Mr. Justice Pontifex was a judgment within the meaning of Clause 15 of the Letters Patent, because according to them Mr. Justice Pontifex had in fact exercised a judicial discretion and had come to a decision of great importance which, if it remained, would entirely conclude any rights of Kali Sundari (who was the party who was affected by the order of Mr. Justice Pontifex) to an execution in the suit. Then their Lordships go on to say that in their opinion Mr. Justice Pontifex could not be said to have usurped the jurisdiction which he did not possess (p. 17):

but, if he had, this would have been a valid ground of appeal, and they are unable to agree with the Chief Justice, that if a Judge of the High Court makes an order under a misapprehension to the extent of his jurisdiction, the High Court have no power of appeal, or otherwise, in setting right such a miscarriage of justice.

With very great respect to their Lordships of the Privy Council, this observation must be read, understood and appreciated in its own context. In the case which was before them, there can be no doubt that the judgment of Mr. Justice Pontifex concluded the rights of parties inasmuch as he dismissed the application for execution. Their Lordships of the Privy Council say that if a Judge misapprehends the extent of his jurisdiction and makes an order, that order would be subject to appeal. But we assume, looking to the facts of the case which was before them, that in misapprehending the extent of his jurisdiction the Judge must decide something which concludes the rights of parties. If in misapprehending the extent of his jurisdiction he passes an order which is merely procedural in character or interlocutory, without finally determining the rights of parties, it could not be said that that order would be a judgment within the meaning of Clause 15 of the Letters Patent.

6. The Privy Council case was considered by a divisional bench of this Court in Secretary of State v. Jehangir.1 In that case Mr. Justice Starling made an order in a suit, in which the Secretary of State was a party, ordering; the Secretary of State to make a further and better affidavit of documents and disclosing certain documents. Now, among the documents which Mr. Justice Starling had ordered to be disclosed were three documents in respect of which the Secretary of State claimed privilege, and the effect of the order of Mr. Justice Starling was that not only the Secretary of State had to make an affidavit of documents but he had to disclose them. The Secretary of State appealed and it was contended by the opponent that the order of Mr. Justice Starling was not appealable as it was not a judgment within the meaning of Clause 15 of the Letters Patent, and the Bench consisting of Mr. Justice Candy and Mr. Justice Chandavarkar took the view that an appeal lay. Now turning to the judgment of Mr. Justice Candy, it is clear that the view that the learned Judge took was that the effect of Mr. Justice Starling's order was to deprive the Secretary of State from claiming the privilege as to the three documents. If Mr. Justice Starling had stopped at merely ordering, an, affidavit of documents, without compelling the Secretary of State, to disclose the documents, the question of privilege would not have been finally determined. But inasmuch as Mr. Justice Starling also ordered the disclosure of documents, the point was concluded and the right of the Secretary of State to claim privilege was finally-determined, and Mr. Justice Candy (p. 349) says:

If Mr. Starling intended that all documents to be disclosed in defendant's affidavit as also all documents mentioned in the list annexed to the written statement must be open to the plain-tiffs full and free inspection whether any of such documents are privileged or not and without any opportunity being given to the Court of considering whether such privilege exists or not, then we have no doubt that such an order was passed under a misapprehension of the extent of the Judge's jurisdiction and that we have the power to set it right.

7. Now, applying this principle, both as laid down in the Privy Council case and as followed in Secretary of State v. Jehangir, to the facts of this case, there can be no doubt that the learned Judge has misapprehended the extent of his jurisdiction. His misapprehension lies in this that he takes the view that it is open to him to question or challenge the order made by Government and to consider whether it is an order made by the Government of Bombay or not. The next question is whether having misapprehended the extent of his jurisdiction he has made an order which affects the merits of the question between the parties by determining some right or liability. Now, Mr. Rao has contended that the petition is misconceived because he has not made the order, but the Government of Bombay has, and in support of his contention he has put forward the order and he says that on the face of the order it must be decided that it is the Government of Bombay from whom the order has emanated and not from him. The learned Judge in making the order under Rule 180 has decided on the merits of this question that it is open to him not to accept the order at its face value. It also determines the rights of the parties because the right of Mr. Rao is to have the petition dismissed against him inasmuch as the petition is not served on the proper party which made the order and he has a right to have that petition dismissed on the strength of the order as it stands and as it is made. The learned Judge has determined his right against him by taking the view that the question whether it was he or the Government that made the order must be determined not by referring to the order itself, not by considering the terms of the order, but aliwnde by having oral testimony led by Mr. Rao who has authenticated the document. Therefore, without extending the principles which have so far governed our Court in construing el. 15 of the Letters Patent, we are of the opinion that the order made by Mr. Justice Bhagwati does constitute a judgment within the meaning of that clause and the order is appealable. As we have already said, on merits very little can be said. Section 59 is clear in its terms; its provisions are mandatory. The Courts are precluded from allowing the orders made by Government to be called in question, and with very great respect the learned Judge has done what the statute says he should not do.

8. We, therefore, set aside the order made by the learned Judge. The appeal is, therefore, allowed with costs including costs reserved.

9. Certificate granted under Section 205 of the Government of India Act.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //