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R. Viswanathan and ors. Vs. Ruknul-mulk S. Abdul Wajid and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 278 of 1959
Judge
Reported inAIR1960Kant261; AIR1960Mys261
ActsCentral Provinces and Berar Sales-tax Act, 1947 - Sections 22(1); Code of Civil Procedure (CPC), 1908 - Order 47, Rule 1; Constitution of India - Articles 132, 132(1), 133, 133(1) and 226
AppellantR. Viswanathan and ors.
RespondentRuknul-mulk S. Abdul Wajid and ors.
Excerpt:
.....of an offence after expiry of the period of one year if the offence is punishable with imprisonment for a term not exceeding one year magistrate erred in taking cognizance of the offence beyond the period of limitation as prescribed under section 458 cr.p.c., - proceedings were quashed. - we found that there were no good grounds either to certify under article 132(1) or to reconsider our order already passed in respect of article 133(1)(c) of the constitution. the collector on an objection by the petitioner might well hold that the property belongs to the petitioner herself and therefore, cannot be attached and sold to recover the arrears due from her husband, the assessee. when we dismissed the petition all we indicated was that there was no occasion for us to exercise the..........of india. the petitioners then presented this present petition for review of the order passed in civil petition number 453 of 1958 on the allegation that we had overlooked to consider the scope of art. 133(1)(b) of the constitution and that the order passed by us indicated that we had dealt with the case as though it was an application for a certificate of fitness only under article 133(1)(c) of the constitution. we heard the learned counsel for the petitioners on 3rd of july 1959 on all the questions raised in the review petition. we found that there were no good grounds either to certify under article 132(1) or to reconsider our order already passed in respect of article 133(1)(c) of the constitution. however, we felt that in regard to the question of certifying under art......
Judgment:

Hombe Gowda, J.

(1) This petition under Order 47 Rule 1 of the Code of Civil Procedure is for review of an order passed by us in Civil Petition Number 453 of 1958 refusing to issue a certificate to appeal to the Supreme Court of India as against the order passed by us in Writ Petition Number 287 of 1958.

(2) The facts leading up to the filing of this petition, in so far as they are relevant for the determination of the points raised in this case briefly stated are as follows:--The petitioners filed a petition under Article 226 of the Constitution of India for the issue of a Writ of Certiorari quashing the judgments and decrees in Regular Appeals Numbers 104 and 109 of 1947-48 passed by a Full bench of the former High Court of Mysore reversing the judgments and decrees of the District Judge, Civil Station, Bangalore, in Original Suit Number 61(A) of 1947. They stated that the judgments and decrees in those appeals were null and void and inoperative on the ground of there being coram non judice for various reasons including the legal incompetence of the Judges that composed the Full bench to hear the appeal. When the Writ petition came up for admission before us we declined to exercise our jurisdiction under Article 226 of the Constitution on the ground that the Pre-Constitution High Court of Mysore was not a Court inferior or subordinate to this Court for the purpose of issue of a Writ of Certiorari and also on the ground that this Court had no jurisdiction to re-open the decisions that had become final before the Constitution came into force.

This order was passed by us on 29th August 1958. The petitioners filed Civil Petition Number 453 of 1958 under Article 133(1)(b) and (c) and Article 132 of the Constitution for the issue of a certificate to appeal to the Supreme Court of India against the said decision. We refused to grant such a certificate. We rejected the application filed by the petitioners by an order passed by us on 16th of April 1959 without notice to the respondents. In the course of our order we stated that the case was not a fit one to issue a certificate of fitness under Article 133(1)(b) and (c) of the Constitution of India. The petitioners then presented this present petition for review of the order passed in Civil Petition Number 453 of 1958 on the allegation that we had overlooked to consider the scope of Art. 133(1)(b) of the Constitution and that the order passed by us indicated that we had dealt with the case as though it was an application for a certificate of fitness only under Article 133(1)(c) of the Constitution.

We heard the learned counsel for the petitioners on 3rd of July 1959 on all the questions raised in the review petition. We found that there were no good grounds either to certify under Article 132(1) or to reconsider our order already passed in respect of Article 133(1)(c) of the Constitution. However, we felt that in regard to the question of certifying under Art. 133(1)(b) of the Constitution it was necessary to consider the matter further and we, therefore, admitted the review petition for the above said limited purpose and ordered notices to be issued to the respondents. In response to the said notices, respondents 1, 2 and 3 appeared before us and have opposed the petition on various grounds.

(3) Mr. T. Krishna Rao, the learned counsel for the opposing respondents contended before us that since the order dismissing the Writ petition filed by the petitioners was passed by us without going into the merits, the petitioners are not entitled to ask for certificate under any of the provisions of Article 132 of the Constitution. He raised three objections and they are: (1) that the order passed by us in refusing to exercise our jurisdiction under Art. 226 of the Constitution and declining to issue a Writ of Certiorari as prayed for the petitioners is not a civil proceeding, (2) that the said order passed by us is not a judgment, decree or final order within the meaning of Art. 133(1) of the Constitution and (3) that the said order did not involve any claim or question respecting property of the value of Rs. 20,000/- and above.

(4) We are not prepared to accept the first contention of Mr. T. Krishna Rao that the proceedings in Writ Petition Number 287 of 1958 are not civil proceedings. It is no doubt true that every application under Article 226 of the Constitution cannot be deemed to be civil proceedings. But the proceedings instituted by the petitioners in the instant case were admittedly for issue of a Writ for quashing the judgment and decrees passed by a Court in civil proceedings. It cannot be disputed that the judgments and decrees passed in the Regular Appeals by the former High Court of Mysore purported to decide the civil rights of the petitioners and the other parties thereto. In the circumstances there is no reason why the application made by the petitioners for quashing such judgments and decrees should not be considered to be civil proceedings.

(5) The next objection is that the order passed by us declining to exercise our jurisdiction under Article 226 of the Constitution and refusing to issue a Writ of Certiorari is neither a judgment nor a decree nor a final order within the meaning of Article 133(1) of the Constitution of India and therefore, no leave or a certificate under Article 133 of the Constitution can be granted to the petitioners. A number of decisions of several High Courts were cited before us by the learned counsel for the parties. We have perused all of them. It learned counsel for the petitioners, that the order passed by us in the Writ Petition is not a judgment or a decree. But he contended that it is 'a final order' since this court had finally disposed of the matter and there was nothing else left, though it was at the stage of admission that we declined to exercise our Writ jurisdiction.

It is not disputed that we did not pass any order on merits of the contentions in regard to the impugned pre-Constitution judgments and decrees passed by the former High Court of the princely State of Mysore. The order passed by us did not deal with any of the rights or liabilities which were the subject-matter of the litigation between the parties. In such circumstances can it be said that the order passed by us summarily rejecting the petition is a final order for the purposes of Article 133 of the Constitution? There is only one answer to this question and that is it is not a final order. We may in this connection refer to a decision of the Madras High Court in Dhanalakshmi Ammal v. Income-tax Officer, Air 1958 Mad 151. In that case, in the circumstances somewhat similar to the one before us, a Division Bench held that an order summarily dismissing a Writ Petition is not final order. Speaking on behalf of the Division Bench Rajamannar, C. J. observed as follows:--

'The next objection which certainly appears to us to be formidable is that the order sought to be appealed against is not a final order. The number of decisions dealing with the question as to when an order can be deemed to be a final order is legion but it is not necessary to examine all of them. Mr. Nambiar's argument briefly was that the only proceeding in this Court was the Writ Petition filed by the petitioner and that was finally disposed of by the order against which the appeal is proposed to be filed and so there is a final order.

'Simple and attractive though the argument appears, logically it will lead to the result that an order dismissing an application for stay of execution of a decree or stay or trial of a suit in a subordinate Court would also be a final order because it may be said that an application for stay is a proceeding in this Court and that has been finally disposed of by the order dismissing it. The test which could be gathered on a study of the relevant authorities for determining the finality of an order is whether the order has finally disposed of the rights of the parties. Vide the decisions in Kuppuswami Rao v. The King. and Premchand v. State of Bihar, : [1951]19ITR108(SC) . In Hossen Kasam Dada (India) Ltd. v. State Govt. of Madhya Pradesh, (1952) 3 STC 289: (AIR 1952 Nag 305) (FB) the facts were these :

'An appeal to the Commissioner of Sales-tax was not admitted on the ground that the applicant had not deposited the tax assessed under the proviso to sub-s. (1) of S. 22, Central Provinces and Berar Sales-tax Act, 1947. The applicant thereupon made an application to the High Court under Article 226 of the Constitution for a direction to the Commissioner of Sales Tax to admit the appeal even though the particular condition was not compiled with.' 'The High Court rejected the application. The applicant thereupon applied for leave to appeal to the Supreme Court under Art. 133 of the Constitution. It was held by a Full Bench of the Nagpur High Court that the Decision of the High Court could not be regarded as a judgment or a final order within the meaning of Art. 133 of the Constitution. Their Lordships pointed out that a judgment or a final order to be appealable to the Supreme Court must affect the merits of the case between the parties by determining some right or liability.

'The High Court did not more than to point out to the applicant that the Act must be complied with. In Thangavelu Chettiar and Co. v. Govt. of Madras, : AIR1955Mad230 , a Bench of this Court held that an order of the High Court relating to a provisional assessment was not a final order within the meaning of Art. 133(1) of the Constitution. It cannot be said that the order of this Court dismissing the writ petition filed by the petitioner has terminated the proceedings taken by the Collector to attach the petitioner's property.

'This Court never determined the right of the petitioner to the property sought to be attached by the Collector for recovery of arrears of income tax. The collector on an objection by the petitioner might well hold that the property belongs to the petitioner herself and therefore, cannot be attached and sold to recover the arrears due from her husband, the assessee. We therefore, hold that the order of this court sought to be appealed against is not a final order within the meaning of Art. 133(1). Vide also West Jamuria Coal Co. v. Bholanath, : AIR1954Cal424 .'

The above observation of the learned Chief Justice with which we respectfully agree is a complete answer to the contention of Mr. B. R. L. Iyengar.

(6) A Division Bench of the Punjab High Court also took the same view in Kehar singh Nihal Singh v. Custodian General, Evacuee Property and in the course of the judgment their Lordships observed:

'In an unreported case Smt. Amar Kuar v. Custodian General, Civil Misc. No. 194-C of 1955(Punj) in which the writ petition had been dismissed by the Bench in limine an application was made for obtaining a certificate under Art. 133 of the Constitution for leave to appeal to the Supreme Court, Dulat J. said:

'Mr. Nayar for the petitioner contends that the result of the dismissal of the petition was that the petitioner's right to obtain the appropriate with from this Court was finally decided, but that does not really help because between the parties concerning their civil rights was settled by this Court and when we view the matter in that light we find that this Court really did not decide any dispute as far as the rights of the parties were concerned.

'When we dismissed the petition all we indicated was that there was no occasion for us to exercise the extraordinary jurisdiction of the High Court in this case and quite clearly no disputed matter concerning the rights of the parties was ever decided by us. In fact it does not appear that even the order of the Deputy Custodial General which was sought to be quashed had finally determined and right, for that order merely left the parties to have an adjudication of those rights made by the ordinary civil Courts, but leaving that alone we are unable to say that we decided any disputed right and that being so we cannot agree that our order dismissing the Writ Petition was either a judgment or a final order within the meaning of Art. 133 of the Constitution.'

(7) Almost to the same effect is the decision of the Allahabad High Court in M/s. Bhagwan Dass and Co. Private Ltd., Dehradun v. Income-tax Officer, Dehradun, : AIR1958All800 . While dismissing the Writ Petition in limine we did not decide finally or otherwise any of the rights in dispute between the parties. Judged by the tests indicated by the learned Judges referred to above, the order passed by this Court rejecting the Writ Petition, in our opinion, is not a final order within the meaning of Article 133(1) of the Constitution.

The finding that the order passed by us in Writ Petition Number 287 of 1958 is not a final order is sufficient to dispose of this petition and we, therefore, feel there is no need to consider the other objections raised by respondent 1 to 3. It may, however, be mentioned that the rights of the petitioners have not been finally disposed of as is clear from their own admission in the affidavit filed along with the Writ Petition. The first petitioner has stated in paragraph 24 of his affidavit as follows:--

'I state that in our present precarious position and considering the immense cost involved in re-agitating the matters by way of proper suit before subordinate Courts and as those proceedings if entertained will take up considerable time the approach to this Hon'ble Court is the only adequate and efficacious remedy in all the circumstances of our case.'

(8) In the result, therefore, this petition fails and the same is dismissed. In the circumstances of the case there will be no order as to costs.

(9) Petition dismissed.


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