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Muralilal Mahabir Prasad and ors. Vs. B.R. Vad and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSupreme Court Civil Appln. No. 369 of 1970
Judge
Reported inAIR1972Bom15; (1971)73BOMLR249; 1971MhLJ480
ActsConstitution of India - Articles 133, 133(1) and 226
AppellantMuralilal Mahabir Prasad and ors.
RespondentB.R. Vad and ors.
Appellant AdvocateH.K. Shah, ;H.M. Ganf and ;J.K. Parikh, Advs.
Respondent AdvocateR.F. Joshi, Adv., i/b., Little & Co. Attorneys
Excerpt:
.....or final order,' what is--high court on writ petition deciding only question of jurisdiction of sales tax authorities but refusing to deal with other grounds--whether high court's judgment fell within article 133.;though writ proceedings are original proceedings under article 226 of the constitution of india, yet it does not mean that every order passed in a writ petition is a judgment or final order within the meaning of article 133 of the constitution. the nature and effect of the order passed must be considered in every case. where, therefore, the high court in a writ petition decided only the question of the jurisdiction of the sales tax authorities to proceed against a dissolved firm and refused to deal with other grounds as the applicant's appeal was pending before the sales tax..........of the constitution, it was an original proceeding raising the question of the jurisdiction of the sales tax authorities under the bombay sales tax laws to levy, assess and reassess sales tax on a dissolved firm and the judgment dismissing it finally decides the question of jurisdiction so far as this court is concerned and hence, it is a judgment or final order within the meaning of article 133.3. it is true that the writ proceedings are original proceedings under article 226. but that does not mean that every order passed in a writ petition is a judgment or a final order within the meaning of article 133. the nature and effect of the order passed must be considered in every case as laid down in : [1966]3scr198 . turning to the nature of miscellaneous application no. 564 of 1965, we.....
Judgment:

Vaidya, J.

1. This is an application for certificate under Article 133(1)(a) and (c) of the Constitution of India filed by the applicants whose Misc. Appln. No. 564 of 1965 (Bom) filed under Article 226 of the Constitution was dismissed by the judgment of this Court D/- 4, 5, 8-12-1969; and the question which arises is whether the said judgment is a judgment in respect of which the High Court can issue a certificate under Article 133(1)(a) or (c).

2. Now, it is well established that the words 'judgment, decree or final order' in Article 133 cannot apply to a judgment recording an interlocutory finding or a finding which does not finally dispose of the rights of the parties. See Ramchand Manjimal v. Goverdhandas l Ratanchand 47 Ind App. 124 : AIR 1920 PC 86; Abdul Rahman v. D. K. Cassim & Sons ; Sardar Syenda Taher Saifuddin Saheb v. State of Bombay, : AIR1958SC253 ; Jethanand & Sons v. State of Uttar Pradesh, : [1961]3SCR754 ; Dr. Hori Ram Singh v. Emperor ; Sridhar Achari v. The King ; Mohammed Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77. Hence, Mr. Shah, the learned Counsel for the applicant, relying on the decisions in Ramesh v. Gendalal Motilal : [1966]3SCR198 and Bhagwan Singh v. Chief Settlement Commr. Punjab, Jullundur, , contended that as Miscellaneous Application No. 564 of 1965 was a petition under Article 226 of the Constitution, it was an original proceeding raising the question of the jurisdiction of the Sales Tax authorities under the Bombay Sales Tax laws to levy, assess and reassess sales tax on a dissolved firm and the judgment dismissing it finally decides the question of jurisdiction so far as this Court is concerned and hence, it is a judgment or final order within the meaning of Article 133.

3. It is true that the writ proceedings are original proceedings under Article 226. But that does not mean that every order passed in a writ petition is a judgment or a final order within the meaning of Article 133. The nature and effect of the order passed must be considered in every case as laid down in : [1966]3SCR198 . Turning to the nature of Miscellaneous Application No. 564 of 1965, we find that it challenged the validity of the order by the Sales Tax authorities during the pendency of an appeal filed against the order under the Sales Tax legislation on several grounds. The judgment of the Court decided only the question of the jurisdiction of the Sales Tax authorities to proceed against a dissolved dirm. This Court refused to deal with the other grounds raised in the petition as the applicant's appeal is pending, for the reasons stated in the judgment. Although the petition is an original proceeding, it springs from and is founded on the proceedings still pending before the Sales Tax authorities. The judgment, no doubt, decides a preliminary point raised by the applicant in the proceedings. The effect of the judgment is that the applicants have to pursue their rights and remedies on merits before the Sales Tax appellate authorities. They are not finally barred by the judgment of the Court. Though the judgment deals with the jurisdiction of the Sales Tax authorities, it is in substance an interlocutory judgment or finding regarding the powers of the said authorities to deal with the grievances of the applicants in the appeals filed by them. We do not think that the decisions in : [1966]3SCR198 and support the contention of Mr. Shah that the impugned judgment of this Court is a judgment within the meaning of Article 133, having regard to all the facts and circumstances of this case.

4. The above application is, therefore, not maintainable and the rule is discharged with costs.

5. Rule discharged.


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