Skip to content


Haji Saleh Mohammed Ahmed Sait and ors. Vs. M. Enayatulla Mekhri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 286 of 1959
Judge
Reported inAIR1961Kant104; AIR1961Mys104
ActsConstitution of India - Articles 132, 133 and 133(1); Code of Civil Procedure (CPC), 1908 - Sections 92 and 109; Government of India Act - Sections 205(1)
AppellantHaji Saleh Mohammed Ahmed Sait and ors.
RespondentM. Enayatulla Mekhri and ors.
Appellant AdvocateM.L. Venkatanarasimhiah, Adv.
Respondent AdvocateH.S. Raja Iyengar, Adv.
Excerpt:
.....1908 and article 133 (1) of constitution of india - suit under section 92 for formulation of scheme for management of institution dismissed by high court - application under article 133 (1) against said dismissal - whether for purpose of applicability of article 133 (1) decision in suit (dismissed) amounted to 'judgment, decree or final order' or whether same was interlocutory in character - decision that respondents (cutchi memons) were not exclusively entitled to management of mosque settled only one of matters necessary for formulation of scheme even though it might be important matter - said decision cannot be regarded as final order therefore application not maintainable. - prevention of insults to national honour act, 1971section 3; [anand byrareddy, j] offence under-..........are not formally terminated in consequence of the decision in question it has to be regarded as a final decision if it substantially decides the matters in issue. the question therefore for consideration in the present case is whether the decision of this court is a decision of that character, the matters still remaining being purely of an ancillary nature.5. it is no doubt true that to the extent that this court negatived the exclusive right of the cutchi memon section of the sunni muslim community to manage the mosque and held that the rest of the community also should have a voice in the management, it gave a decision on an important issue in the case. it is also true that in consequence of this view this court negatived the present petitioner's contention that the previous scheme.....
Judgment:

N. Sreenivasa Rau, J.

1. This is an application under Article 133(1)(a); (b) and (c) of the Constitution of India for the issue of a certificate to prefer an appeal to the Supreme Court against the decision of this Court to R. A. No. 120 of 1950-51. The District Court C. & M. Station, Bangalore, dismissed the suit filed by tome of the present Respondents under Section 92 of the Code of Civil Procedure for the formulation of a scheme for the management of an institution known as Jumma Masjid, situated in the Civil Station, Bangalore in supersession of the scheme previously framed by that Court. The plaintiffs who purported to represent the Sunni Muslim Community of the Civil Station contended that the whole of that community was interested in the mosque while the previous scheme vested its management only in the representatives of one section of that community, namely, Cutchi Memons. The defendants who belonged to the Cubeb Memon section of the community resisted the suit claiming exclusive right to the management of the mosque.

The District Judge in substance upheld the defendants' contention as mentioned above and dismissed the suit. This Court came to the conclusion that the whole of the Sunni Muslim community was interested in the mosque, set aside the decision of the District Court and directed that a new scheme should be framed and remitted the case to the District Court for the formulation of a scheme.

2. The main point for consideration in this petition is whether the decision of this Court is a 'judgment, decree or final order' as Contemplated under Article 133(1) of the Constitution as urged by the Petitioners or whether it is essentially 'interlocutory' in character as urged by the contesting Respondents, It is not disputed by the Petitioners that in form the decision is not final and that further proceedings have to take place for the disposal of the suit, but it is urged that the main and substantial matter in controversy was whether the Cutchi Memons had the exclusive right of management of the institution and as this matter has been set at rest by the decision of this Court the decision is a final one and that ail that has to follow is purely of an ancillary character. On the other hand it is urged for the other side that the main object of the suit was the formulation of a scheme which is yet to be framed, that this court's decision that the Cutchi Memons were not exclusively entitled to the management of the mosque settled only one of the matters necessary for the formulation of a scheme even though it might be an important matter and that therefore the decision cannot be regarded as a final one.

3. A number of decisions have been cited by the learned Counsel on both the sides beginning with that reported in Rahimbhoy Haribhoy v. C. A. Turner, ILR 15 Bom 155. It seems to be sufficient, however, to refer to the decision reported in Abdul Rahman v. D. K. Cassim & Sons and some of the later decisions since, as pointed out in the decision, the provisions of the earlier Code of Civil Procedure corresponding to Section 109 of the Code of 1908 were somewhat differently worded. The decision in referred to and explained the principle laid down by the Privy Council in Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand ILR 47 Cal 91S : (AIR 1920 PC 86). It was statcd:-

'The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it ..... The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of parties. It no doubt decided an important and even a vital issue in the case, but it loft the suit alive and provided for its trial in the ordinary way.'

The Federal Court in the case reported in Mahomed Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77 adopted the above view and also held that the definition of the words judgment, decree or final order' in Section 205(1) of the Government of India Act (corresponding to Article 133(1)) make it clear that no appeal is provided against an 'interlocutory judgment or order'.

4. In the case reported in Election Commission India v. Venkata Rao : [1953]4SCR1144 the difference between Article 133 and Article 132 is pointed out, namely, that Article 132 the term ''Find Order' includes an order deciding an issue, which, if decided in favour of the appellant, would be sufficient for the final disposal of the case which by implication would mean that a more restricted meaning has to be given to the term 'Final Order' under Article 133.

This test of finality has been applied by the various High Courts. There can be no doubt that even if the suit or proceedings are not formally terminated in consequence of the decision in question it has to be regarded as a final decision if it substantially decides the matters in issue. The question therefore for consideration in the present case is whether the decision of this Court is a decision of that character, the matters still remaining being purely of an ancillary nature.

5. It is no doubt true that to the extent that this Court negatived the exclusive right of the Cutchi Memon section of the Sunni Muslim community to manage the mosque and held that the rest of the community also should have a voice in the management, it gave a decision on an important issue in the case. It is also true that in consequence of this view this Court negatived the present Petitioner's contention that the previous scheme was not liable to be superseded.

In arriving at this conclusion this Court had to consider various issued raising substantial questions of fact and law and some of the questions of law raised and decided might have justified the granting of leave. But the result was that the direction to formulation of a scheme itself is a substantial and even vital matter. That still remains to be done. The learned Advocate for the Petitioners relied upon the decisions in Jones Shield v. N. Ramesam, (S) : AIR1955AP156 and Shiromanj Gurdwara Prabandhak Committee, Amritsar v. Raja Shiv Ratan Deo Singh, (S) : AIR1955SC576 .

But it is seen from a perusal of the former decision that all the material issues between the parties were finally decided and that there was nothing more to be done by the trial Court after remand except to pass a decree. In the latter decision also it was held that the decision finally determined the rights of the parties in regard to the ownership of the property in question and all that remained to be done was to pass a decree in terms if the order which indeed appears to have been done during the pendency of the matter in the Supreme Court.

It is urged by the learned Advocate for the Petitioners that the rights of the parties have been determined in the present Case also. While it has been held by this Court that the Cutchi Memons have no exclusive right and that the rest of the Sunni Muslim community should also have a voice in the management, the manner in which the two sections have to be represented and indeed the whole question of the mode of management has still to be worked out and until that is done it cannot be said that the rights of the parties have been finally determined. This Court's decision only gives some indications by way of observations to be borne in mind in framing the scheme.

6. It appears, therefore, that the decision of this Court cannot be regarded as a judgment, decree or order of a final character. The petition is, therefore, dismissed. No costs.

7. Petition dismissed.


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