Skip to content


M. Gopaiah Vs. Sri Malleswara Swami Labour Contract Co-operative Society Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 555 of 1980 and Writ Appeal S.R. No. 94417 of 1980
Judge
Reported inAIR1981AP182
ActsConstitution of India - Articles 133(1), 225 and 226; Andhra Pradesh High Court Rules - Rules 17, 24 and 41; Andhra Pradesh Contract Labour (Regulations and Abolition) Act, 1970
AppellantM. Gopaiah
RespondentSri Malleswara Swami Labour Contract Co-operative Society Ltd. and ors.
Appellant AdvocateS. Ramachandra Rao, Adv.
Respondent AdvocateB.V. Subbaiah and ;G. Ramachandra Rao, Advs.
DispositionAppeals dismissed
Excerpt:
.....virtue of article 225 of the constitution and all other powers enabling it to regulate the proceedings under article 226 of the constitution. 6. for the foregoing reasons, we hold that these two writ appeals are not maintainable and both the writ appeals fail and are accordingly dismissed......district munsif. aggrieved by that order, this writ petition is filed.2. though we admitted the writ appeal, we ourselves were doubtful whether a writ appeal lies against such an order. appeals against judgments rendered in writ petitions by a single judge of this court are filed and entertained under clause 15 of the letters patent. what constitutes a judgment has been the subject-matter of several decisions. in asrumati devi v. rupendra deb raikot, : [1953]4scr1159 , the supreme court had occasion to consider the question as to what are the tests to determine whether a particular order made by a single judge of the calcutta high court under clause 13 of the letters patent, calcutta constituted a judgment under clause 15 of the letters patent for the purpose of the appeal. their.....
Judgment:

Madhava Reddy, J.

1. These two writ appeals are directed against the order of our learned brother P.A. Choudary, J. directing the District Munsif, Guntur -

'to take evidence by summoning all witnesses and documents which he might consider necessary as to who are all the persons who have been rendered landless or occupationless by reason of the acquisition of the lands at Pedakakani by the Central Warehousing Corporation and of them who are the members of the petitioner-society and who are the members of the 3rd respondent-society and who are interested and who are not interested in working for the Corporation.'

Sri Malleswara Swamy Labour Contract Cooperative Society Limited, Petiakakani has filed a writ petition for the issue of a writ of prohibition or an appropriate order prohibiting the Central Warehousing Corporation from granting the contract or entrusting the work of handling the material at the godowns and transporting the same from the railhead to any other society or individual other than the petitioner-society. That relief is claimed on the ground that the members of the society who were formerly raising vegetables and other fruit yielding plants on small extents of land now acquired by the Warehousing Corporation have been deprived of their livelihood by dint of the acquisition of their land for the construction if the godowns for the Central Warehousing Corporation. As they had become landless labourers and wanted to work in the godowns forming themselves into a labour co-operative society, the petitioner-society was formed and registered under the Andhra Pradesh Co-operative Societies Act. They are the residents of Pedakakani village. They claim that they have a preferential claim to handle all the material to be stored or lifted from the godowns of the Corporation and are also entitled to transport the same from the Guntur railway station to the godown premises. The petitioner-society was given the work to handle the material on an ad hoc basis and it had also acquired a licence under the Andhra Pradesh Contract Labour (Regulations and Abolition) Act, 1970. An undertaking for entrusting the work to them was also given by the respondent-Corporation. It was alleged that notwithstanding that undertaking, the respondent-Corporation has called for tenders for the work to handle the material at the godowns and for transporting the material from the railhead. It is alleged that this action of the respondent is motivated by different considerations and is a step towards favouring some others. During the course of the hearing of that writ petition, our learned Brother thought it necessary to ascertain 'the persons whose land have been acquired by the Central Warehousing Corporation'. As there was no agreement between the parties regarding that fact, he directed an enquiry as mentioned above. The writ petition is part-heard before the learned single Judge awaiting the report from the District Munsif. Aggrieved by that order, this writ petition is filed.

2. Though we admitted the writ appeal, we ourselves were doubtful whether a writ appeal lies against such an order. Appeals against judgments rendered in writ petitions by a single Judge of this Court are filed and entertained under Clause 15 of the Letters Patent. What constitutes a judgment has been the subject-matter of several decisions. In Asrumati Devi v. Rupendra Deb Raikot, : [1953]4SCR1159 , the Supreme Court had occasion to consider the question as to what are the tests to determine whether a particular order made by a single Judge of the Calcutta High Court under Clause 13 of the Letters Patent, Calcutta constituted a judgment under Clause 15 of the Letters Patent for the purpose of the appeal. Their Lordships were concerned with an order allowing an application for transfer of a suit to the High Court to be tried in its Extraordinary Original Civil Jurisdiction and had to determine whether it is a 'judgment' within the meaning of Clause 15 of the Letters Patent for the purpose of appeal. After considering the meaning of the word 'judgment', while stating that 'it is not our purpose in the present case to frame an exhaustive definition of the word 'judgment' used in Clause 15 of the Letters Patent, their Lordships laid down--

'A decision on any and every point in dispute between the parties to a suit is not necessarily a 'judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground.'

and proceeded to hold-

'An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground... ... ... .. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Clause 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be taken only from the stage at which they were left in the Court in which the suit was originally filed.'

As early as in Tuljaram Row v. Alagappa Chettiar, (1912) ILR 35 Mad 1 a Full Bench of the Madras High Court the decision in which is binding on us dealing with the question whether an order refusing to frame an issue asked for by one of the parties is a 'judgment' within the meaning of Clause 15 of the Letters Patent laid down-

'I do not think the word 'judgment' is used in contradistinction to the words 'sentence' or 'order' which immediately follow it. The words 'not being a sentence or 'order passed or made in any criminal trial', as it seems to me, were introduced in order to exclude all criminal proceedings from the operation of the section and that it is not to be inferred from the introduction of these words that the legislature intended that the word 'judgment' should include all orders in civil proceedings.

Further, I am not prepared to infer, from the fact that in Sections 39 and 40 of the Letters Patent a distinction is drawn between final judgment, decrees or orders, and interlocutory judgments, decrees or orders, that the word 'judgment' in Section 15 is to be deemed to include any order in any interlocutory proceeding.

The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.'

Speaking generally I think the word 'judgment' means any 'final order, decree or judgment' within the meaning of these words as used in Section 12 of the English Judicature Act, 1875.'

In the result, the Full Bench held that an order of a single Judge on the original side, refusing to frame an issue asked for by one of the parties is not a judgment within the meaning of Clause 15 of the Letters Patent and is not appealable. This view has been affirmed in several subsequent judgments and has stood the test of time. In Punnayya v. Parandanayya, AIR 1927 Mad 317, a Division Bench of the Madras High Court held that an order of a single Judge calling for a finding on an issue newly framed by him, or old, whether raised in the pleadings or not is not a judgment within Clause 15. The reason for so holding was stated to be that no right or title can be said to have been adjudicated upon by the mere framing of an issue and by directing that issue to be tried. The order now under appeal before us is of similar nature. Another Full Bench of the Madras High Court in Central Brokers v. Ramanarayana Poddar & Co., : AIR1954Mad1057 had to consider whether an order under Section 10 of the Code of Civil Procedure or any other law for stay of the trial of a suit is a 'judgment' within the meaning of Clause 15 of the Letters Patent The Full Bench held that it is not a judgment and that no appeal lies against it under the said Clause 15 of the Letters Patent. In coming to that conclusion the Full Bench applies two tests laid down by their Lordships of the Supreme Court in Asrumati Debi v. Kumar Rupendra Deb Raikot, : [1953]4SCR1159 namely, (1) whether it terminates the suit or proceeding, and (2) whether it affects the merits of the controversy between the parties in the suit itself. If either of these conditions is satisfied, then it is a judgment. But if it is only an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit it is not a judgment at all. A Division Bench of our own High Court in Sheik Ali v. Noorjehan, ILR (1969) Andh Pra 1014, dealing with an identical question where a single Judge of the High Court had called for a finding on an issue framed by him in appeal held that it is not a judgment within the meaning of Clause 15 of the Letters Patent and it is nothing more than a step towards obtaining a final adjudication in the appeal pending before the High Court. The expression 'judgment' in Clause 15 means only 'final orders', 'decree' or 'judgment' and not orders where the effect of them do not put an end to a suit or proceeding, and accordingly held that the appeal is not maintainable.

3. Applying the tests laid down by the above decisions, we are unable to hold that the order under appeal constitutes a judgment within the meaning of Clause 15 of the Letters Patent. The order does not dispose of the writ petition, but it merely calls for a finding on a certain matter which the learned single Judge thought was necessary to be ascertained before final orders in the writ petition are made. Irrespective of whether the finding is in favour of one or the other party, the result of the writ petition would depend upon several other factors which the learned Judge would be taking into consideration after hearing the parties. Any report of finding submitted by the District Munsif in pursuance of the order in question and the order calling for such a finding is merely a step towards a final adjudication and not an adjudication on the writ petition itself. May be this finding will have a very important bearing on the disposal of the writ petition, but nonetheless it is merely a step towards that end and does not constitute disposal of the writ petition itself nor the order finally adjudicates the writ petition. None of the two tests referred to in the Full Bench decisions of the Madras High Court and the Supreme Court, namely : [1953]4SCR1159 , whether it terminates the suit or proceeding, and ((1912) ILR 35 Mad 1) (FB), whether it affects the merits of the controversy between the parties in the suit itself, are satisfied. We are therefore clearly of the view that it does not constitute a 'judgment' so as to entitle the aggrieved party to prefer an appeal under Clause 15 of the Letters Patent

4. It was however argued that the right to appeal against a 'judgment' of a single Judge exercising jurisdiction under Article 226 of the Constitution of India is not vested in a party under Clause 15 of the Letters Patent but it is conferred on him by Rule 17 of the Rules framed by the High Court of Andhra Pradesh by virtue of Article 225 of the Constitution and all other powers enabling it to regulate the proceedings under Article 226 of the Constitution. Rule 17 of the said Rules reads as follows:

17. (a) 'The memorandum of appeal against an order in a petition or an application shall be in the form prescribed for an appeal under the Letters Patent but will be registered and numbered as a 'writ Appeal'

(b) An application for an interim order in a writ appeal shall be numbered as a 'Writ Appeal Miscellaneous Petition'.

A bare reading of that Rule is sufficient to show that there is no merit in the contention of the counsel. What all Rule 17 lays down is that the memorandum of appeal against an order shall be in a particular form and that the appeal shall be numbered as Writ Appeal. That is a rule merely regulating the procedure. The rule does not say that an appeal shall lie against an order made in a proceeding in a writ petition. It is unnecessary for our present purposes to determine whether in exercise of the powers conferred on the High Court under Article 225 of the Constitution of India, the High Court, apart from regulating the proceedings under Article 226 of the Constitution could also frame rules conferring a right of appeal in regard to matters arising out of those proceedings. Suffice to note that Rule 17 does not confer such a right and there is no other rule to that effect framed by the High Court in exercise of the powers vested in it under Article 225 of the Constitution or any other power.

5. Reliance was also placed in this behalf on Rule 24 of the Rules in question to contend that the right of appeal is conferred only by Rule 17 by excluding all other provisions which are inconsistent with that provisions. Rule 24 reads as follows:

'All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the Writ Petitions and the Writ Appeals in so far as they are not inconsistent with these rules.'

That again is a rule which does not confer or take away the right of appeal. It merely makes applicable all other Rules relating to causes and matters coming before the original side, or appellate side of the High Court and the provisions of the Code of Civil Procedure to writ petitions and writ appeals to the extent that they are not inconsistent with the Rules specifically framed under Article 225 of the Constitution to regulate the proceedings under Article 226 of the Constitution. None of the Rules framed under Article 225 of the Constitution override Clause 15 of the Letters Patent nor any of these Rules confer a specific right of appeal against the order such as the one against which the present appeal is filed.

6. For the foregoing reasons, we hold that these two writ appeals are not maintainable and both the writ appeals fail and are accordingly dismissed. In the circumstances, we make no order as to costs.

7. An oral request to grant leave to appeal to the Supreme Court was made by the learned counsel appearing for both the parties. As the decision in these appeals is based on the principles enunciated by the Supreme Court, we do not think that it is a fit case for grant of leave to appeal to the Supreme Court. No substantial question of law of general importance arises in these appeals. Leave is therefore refused.


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