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Kudapa Subbana Vs. Chitturi Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSupreme Court Leave Petn. No. 16 of 1971
Judge
Reported inAIR1972AP261
ActsConstitution of India - Article 133; Limitation Act - Sections 14
AppellantKudapa Subbana
RespondentChitturi Gandhi and ors.
Appellant AdvocateN.C.V. Ramanujachari, Adv.
Respondent AdvocateT. Veerabhadrayya, Adv.
Excerpt:
limitation - interlocutory order - section 14 of limitation act and article 133 of constitution of india - trial court decision on preliminary issue set aside in revision against preliminary issue - suit not liable to be disposed on such set aside of preliminary issue - rights of parties not determined by such order in revision - mere decision on preliminary issue cannot be treated as final order - held, application for leave to appeal before supreme court from such interlocutory order not allowed. - .....leave to appeal to the supreme court of india under art. 133 of the constitution from our order in civil revision petition no. 122 of 1970.2. a few facts which gave rise to the civil revision petition before us may be stated. o. s. 4 of 1965 was filed by the present petitioner for recovery of a sum of rs. 1,08,900/- being the past mesne profits due for the period 1941, to 1951. the petitioner, who was the plaintiff, invoked the aid of section 14 of the limitation act to bring the suit within time. the trail court framed an additional issue which read as follows:---'whether the plaintiff is entitled in law to the benefit of section 14 of the indian limitation act and claim deduction of the period from 31-7-1940 to 18-12-1944 in computing the period of limitation prescribed for the.....
Judgment:

Krishna Rao, J.

1. This is an application for leave to appeal to the Supreme Court of India under Art. 133 of the Constitution from our order in Civil Revision Petition No. 122 of 1970.

2. A few facts which gave rise to the civil revision petition before us may be stated. O. S. 4 of 1965 was filed by the present petitioner for recovery of a sum of Rs. 1,08,900/- being the past mesne profits due for the period 1941, to 1951. The petitioner, who was the plaintiff, invoked the aid of Section 14 of the Limitation Act to bring the suit within time. The trail Court framed an additional issue which read as follows:---

'Whether the plaintiff is entitled in law to the benefit of Section 14 of the Indian Limitation Act and claim deduction of the period from 31-7-1940 to 18-12-1944 in computing the period of limitation prescribed for the suit.'

3. This was tried as a preliminary issue by consent of parties. The trial Court held that issue in favour of the plaintiff. The aggrieved defendants preferred the above civil revision petition to this Court. By out order dated 23-22-1971 we disagreed with the lower Court and held that the plaintiff was not entitled to the exclusion of time taken by the earlier proceedings in computing the period of limitation for the suit. The trail Court framed several issues and as the revision was directed only against the findings given on the preliminary issue, we had observed in our order in the civil revision petition as follows:----

As this revision has been filed against certain findings on certain issues which were dealt with by the lower Court as preliminary issues, it is for the lower Court to dispose of the suit which is pending before it.'

4. The application for leave to appeal is resisted by the respondents. Their contention is that our order in the civil revision petition is not a final order so as to enable this Court to consider whether leave should be granted. We think that the contention of the respondents that the order in the civil revision petition made by us is not a final order within the meaning of Article 133 of the Constitution is correct. We expressly left it to the trail Court to dispose of the suit which was pending before it after the disposal of the civil revision petition by us.

5. What is urged by the learned counsel for the petitioner is that the conclusion came to by us that the plaintiff was not entitled to the benefit of exclusion of time under Section 14 of the Limitation Act, virtually disposed of the suit before the trail Court and there was nothing for the lower Court to do, but to dismiss the suit as time-barred. As the effect of our order in the civil revision petition of the suit, it must be deemed to be final order. Any decree that may be made by the trial Court now would be merely formal and for all practical purposes our order is tantamount to a dismissal of the suit by the trial Court.

6. The question as to what is a final order has been the subject-matter of judicial pronouncements of not only the High Courts, but the highest courts viz., the Privy Council and the Supreme Court. We will now refer to the authorities cited at the bar by both counsel.

7. In Ramchand v. Goverdhandas, (AIR 1920 PC 86) certificates under Section 109, C. P. C. were sought before the Judicial Commissioner, Sind, for an appeal to the Privy Council. A certificate was granted under Section 110 of the Code of Civil Procedure, 1908. When the appeals came up before their Lordships, a preliminary objection was raised that the appeals did not lay to the Privy Council. Their Lordships upheld the preliminary objections and observed that an other 'is final if it finally disposes of rights of the parties and that the orders before them did not finally dispose of those rights, but leave them to be determined by the Courts in the ordinary way.'

8. In Mohd. Amin Bros, v. Dominion of India, AIR 1950 FC 77 a case which arose under Sec. 205(1) of the Government of India Act, their Lordships of the Federal Court had to consider the meaning of 'final order',. Their Lordship observed that the test for determining the finality of an order was whether the judgment or order finally disposed of the rights of the parties and that the finality must be a finality in relation to the suit. They further observed that the fact that the order decides an important and even a vital issue is by itself not material, unless the decision puts an end to the suit.

9. Counsel relied upon Jethanand and Sons v. State of U. P., : [1961]3SCR754 . In the aforesaid decision, their Lordships observed:

'An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceedings still remains to be tried and the right in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.'

10. Stress was laid on the words 'if the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined' by the counsel. It was pointed out to us that there are no rights in dispute between the light of the order in the civil revision petition and that the plaintiff was not entitled to invoke the aid of Section 14 of the Limitation Act.

11. In Abdul Rahman v. Cassim & Sons, AIR 1933 PC 58.

Their Lordships of the Privy Counsel had to consider a question of an order of remand made under Order 41, Rule 23, C. P. C., and leave granted by the High Court to appeal to the Privy Council. In considering the question, their Lordships considering the question, their Lordships referred to the decision in Air 1920 PC 86 and observed that the test of finality was whether the order finally disposed of the rights of the parties and where the order did not finally dispose of those rights but left them to be determined by the ordinary Courts in the ordinary way, it would not be a final order. In granting the certificate of leave to the Privy Council, it would appear that the High Court in that case had observed that the order of remand made 'went to the root of the suit, namely, the jurisdiction of the Court to entertain it.' and it was for that reason the High Court thought the order to be final and granted the certificate. This, their Lordships pointed out, was not sufficient. The stated that the finality must be in finality in relation to the suit. If after the order a suit was still a live suit in which the rights of the parties had still to be determined, no appeal lay against it under Section 109(1) of the Civil Procedure Code of 1908. Their Lordships also observed that the refusal to grant a certificate in such a case would not involve any hardship, because in a proper case it was always open to the appellate Court to give a special certificate under section 109(c) of the Code of Civil Procedure. They went on to observe that in the case before them the order sought to be appealed against was not to dispose finally of the rights of the parties, even though undoubtedly the order decided an important and even a vital issue in the case, but is still left the suit alive and provided for its trial in the ordinary way. Even if the High Court decided an important and even a vital issue in the case and still leaves the suit alive and provides for its trail in the ordinary way, the order would not be a final one.

12. In Tarapore & Co., Madras v. Tractors Export Moscow, : [1969]2SCR699 , their Lordships observed that the expression 'Judgment' in Article 133(1) of the Constitution in which it occurs means a final adjudication by the Court of the rights of the parties, and that an interlocutory judgment even if it decides an issue or issues without finally determining the rights and liabilities of the parties is not a judgment, however cardinal the issue may be. The expression 'final order' meant a final decision on the rights of the parties in dispute in a suit or proceeding and that if the right of the parties in dispute or proceedings remained to be tried after, the order was not final. Then their Lordships considered several authorities cited before them and observed thus:----

'There is, therefore, abundant authority in support of the view that the an order is final without the meaning of Article 133 of the Constitution, under Section 109 Code of Civil Procedure or Section 205 of the Government of India Act, 1935, if it amounts to final decision on the rights of the parties in dispute in the suit or proceedings; if after the order is made the suit or proceedings still remains to be tried, and the rights in dispute have to be determined, the order is interlocutory.'

13. An argument would appear to have been advanced before their Lordships that interlocutory as the order sought to be appealed against was, still it would render the suit infructuous as framed. The said argument did not impress their Lordships and was not countenanced.

14. In V. Narasimha Rao v. State, AIR 1970 Andh Pra 438, the learned Judges had to consider a case where a certificate was sought for appeal to the Supreme Court under Article 133. In that case, the Tribunal under the Estates Abolition Act, having regard to the facts presented before it, found that sufficient cause was shown for condoning the delay regarding an appeal filed before it and accordingly discretion was exercised in condoning the delay. That came up for challenges before the High Court in a writ petition. In the writ petition, the learned Single Judge had set aside the order of the Tribunal condoning the delay and issued a writ quashing that order. On appeal Obul Reddi and Madhava Reddy, JJ., had allowed the writ appeal. The result was that the order of the Tribunal condoning the delay remained valid. It was urged before the Division Bench that the judgment in writ appeal had far reaching consequences adversely affecting the rights of the parties. This contention was rejected holding that the test was whether it could be held that their judgment in writ appeal determined the rights of the parties and that had there not been determination of the rights of the parties, there was no final order. In that view of the matter, their Lordships refused to grant a certificates for appeal to the Supreme Court.

15. The position that emerges from the above decisions referred to is that (1) whenever an application is made under Article 133 of the Constitution for a certificate of leave to appeal to the Supreme Court of India, it is for the High Court to first determine whether the matter sought to be appealed from is a judgment, decree or final order; (1) such determination is a condition precedent to the grant of a certificate under Article 133(1) of the Constitution; (3) the test of finality of a judgment, decree or order is to see whether the order finally disposes of the rights of the parties. If they are not so determined and the matter is left to be determined by the Courts in the ordinary way, it would not be a final order; (4) Even in cases where the order in respect of which leave is sought goes to the root of the suit, such as on the jurisdiction of the Court to entertain it would not be final order, if after the order the suit is still a live suit in which the right of the parties are left to be determined. Even though the result of the order of the High Court was to make the suit infructuous as framed, still it would not be a final order and it would be merely an interlocutory order. (5) Even if the order of the High Court decides an important and even a vital issue, but left the suit alive and directed its disposal in the ordinary way, the order would not be a final one.

16. Judging the facts of the instant case in Revision we decided only one issue which was tried by the Trial Court as a preliminary issue viz., whether the plaintiff was entitled to invoke the aid of Section 14 of the Limitation Act to save the suit from the bar of limitation. We merely decided the question raised and debated before the question raised and debated before us and expressly directed that it was for the trial court to dispose of the suit which was pending before it. The order in the Civil revision petition is not a final used in Art. 133 of the Constitution of India. The suit is still a live suit. The plaintiff is not debarred by reasons of our order by invoking the aid of any other provision of law which would save it from the bar of limitation by seeking appropriately to amend the plaint. The finality of our order is only in respect of the particular issue-covering the questions raised under Section 14 of the Limitation Act. We are, therefore, of opinion that the order under revision is not a final order.

17. The certificate for leave to appeal is, therefore, refused. In the circumstances, we make no order as to costs.

18. Application dismissed.


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