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G. Royrao and anr. Vs. Datta Venkatapathi Raju and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberSupreme Court Civil Misc. Petn. No. 5857 of 1960
Judge
Reported inAIR1961AP402
ActsConstitution of India - Article 133(1)
AppellantG. Royrao and anr.
RespondentDatta Venkatapathi Raju and ors.
Appellant AdvocateA. Bhujanga Rao, ;R. Ramalinga Reddy and ;K.V. Raghunatha Reddy, Advs.
Respondent AdvocateC. Ramarao, ;C. Poornaiah, ;P. Somasundaram and ;P. Suryanarayana, Advs.
DispositionPetition dismissed
Excerpt:
.....supreme court under article 132 filed on final decision, order or judgment - main issue in present suit decided while other issues still undecided - held, appeal cannot be referred before supreme court till its final disposition. - - when the trial began, the accused raised an objection that the prosecution was vitiated by the failure to obtain the sanction of the governor for the institution of criminal proceedings, the court overruled the objections and dismissed the application with the result that the trial had to go on before the magistrate. , after referring to the authorities laid down that 'to constitute a final order, there must be such a determination of the points in dispute as would dispose of the proceedings'.15. to a like effect is the decision of the supreme court in..........alone was liable to account to the partners. in the result, he allowed the appeal and remanded the suit to the trial court for consideration of the first defendant's liability.6. the aggrieved party carried the matter in appeal to this court in c.m.a. no. 515 of 1953. we decided that the fourth defendant was an agent and, therefore, incurred an obligation to render a proper account to the other partners. in this view, we sent back the matter to the lower appellate court to determine the liability of the fourth defendant. it is this order that is sought to be appealed against to the supreme court.7. an appeal would lie to the supreme court only against any judgment, decree or final order in a proceeding of a high court under article 133 of the constitution. the point for determination in.....
Judgment:

Chandra Reddy, C.J.

1. This application for leave to appeal to the Supreme Court is filed under Section 110 and Order XLV Rules 2, 3 and 8 C.P.C. and Articles 132 and 133 of the Constitution.

2. The suit out of which this application arises was instituted by the first respondent for dissolution of partnership between him and defendants 1 to 6 in the suit and for accounts.

3. The suit was mainly contested by the fourth defendant, the other defendants sailing with the plaintiff. The main issue to be tried in the suit, therefore, was whether it was the fourth defendant that was liable to render an account to the other partners.

4. The trial court upheld the contention of the plaintiff and the other defendants that it was the fourth defendant that managed the concent and consequently he was liable to give an account to the other partners. In the result, the suit was decreed as prayed for making the fourth defendant liable to account to the plaintiff and other defendants.

5. On appeal, this order was reversed by the District Judge in the view that the fourth defendant was not an agent and as such was under no obligation to account to the other partners. He thought that the first defendant company represented by the fourth defendant, the appellant before the District Judge, alone was liable to account to the partners. In the result, he allowed the appeal and remanded the suit to the trial court for consideration of the first defendant's liability.

6. The aggrieved party carried the matter in appeal to this court in C.M.A. No. 515 of 1953. We decided that the fourth defendant was an agent and, therefore, incurred an obligation to render a proper account to the other partners. In this view, we sent back the matter to the lower appellate court to determine the liability of the fourth defendant. It is this order that is sought to be appealed against to the Supreme Court.

7. An appeal would lie to the Supreme Court only against any judgment, decree or final order in a proceeding of a High Court under Article 133 of the Constitution. The point for determination in this petition is whether the order in question satisfies the test of finality contemplated by Article 133 of Section 109 C.P.C. as adapted under the Adaptation of Laws Order, 1950.

8. It is represented by Sri Bhujangarao, learned Counsel for the petitioners, that the order sought to be appealed against to the Supreme Court is a final one in that it has determined the rights of the parties. To put it differently, his contention is that our judgment has decided the liability of the fourth defendant and that, to that extent, it has finally disposed of the claim of the other defendants as against his clients, who are the legal representatives of the fourth defendant.

We find it difficult to accede to this argument. In our opinion, although the issue decided by us was a very important and vital one, yet there is no finality in relation to the suit, since the suit is still alive in so far as the dispute as between the plaintiff and the first defendant and the fourth defendant are concerned in regard to the amount that may be found due on taking of accounts. It is only when all the points in issue between the parties are adjudicated upon in a proceeding by an order that the attribute of finality is attached to such an order.

9. We do not think that Abdul Rahman v. D.K. Cassim and Sons, ILR 11 Rang 58 : (AIR 1933 PC 58) called in aid by Sri Bhujangarao renders any assistance to him. On the other hand, the principles enunciated therein by their Lordships of the Judicial Committee does him disservice. The facts of that case are these. The firm of Cassim and Sons had filed a suit for damages against the defendants on the ground that they all entered into a conspiracy to ruin their business. Pending the action, the plaintiffs were adjudged insolvents.

The Official Assignee refused to prosecute the suit and it was dismissed on the ground that the cause of action had vested in the Official Assignee and that the plaintiff could not continue the suit. This judgment was reversed by Page, C.J. and Das, J., of the Rangoon High Court in the view that the cause of action was personal to the insolvents and did not pass to the Official Assignee. The learned Judges granted a certificate under Section 109(c) C.P.C. being of the opinion that the requirements of Section 110 C.P.C. were complied with.

10. An objection was taken on behalf of the respondents in that case before the Judicial Committee that an appeal was incompetent for the reason that the order appealed against was not a final one within the contemplation of Section 109(a) C.P.C. Their Lordships gave effect to this submission on the ground that the effect of the order from which appeal was sought to be filed was not to 'finally dispose of the rights of the parties' and that though the High Court had decided an important and even a vital issue in the case, it left the suit alive and provided for its trial in the ordinary way.

In support of their conclusions, their Lordships referred to Ramachand Majimal v. Govardhanadas Vishindas Ratnachand, 47 Ind. App. 124 : (AIR 1920 PC 86). In that case, the question arose with reference to an order in a suit on a cotton contract which had been stayed by Court under Section 19 of the Indian Arbitration Act. This order was set aside on appeal and the case was remanded for disposal on the merits. Leave to appeal against this order was granted on the ground that it was a final order. At the hearing before the Privy Council, a preliminary objection was taken that the order in question was not a final one and, therefore, the certificate was wrongly given and that the appeal was incompetent. This preliminary objection was accepted by their Lordships and the appeal was dismissed. In upholding the objection, this is what Viscount Cave observed :

'The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights but leave them to be determined by the courts in the ordinary way. In their Lordships' view, the orders were not final, and accordingly the appeals cannot proceed'.

11. It is clear from this pronouncement that the fact that an important and vital issue is decided in a case would not make the order a final one, if there are some matters left to be determined in the suit, in other words, if the rights of the parties have yet to be determined.

12. We are unable to see how Raghavacharyulu v. Vcnkata Ramanujacharyulu, : AIR1954Mad406 comes to the rescue of the petitioners. On the other hand, the doctrine embodied in this ruling furnishes an answer to the contention now urged on behalf of the petitioners. Venkatarama Ayyar, J., who spoke for the court, dealt with this aspect of the matter elaborately and ruled that an order could be held to be final order only if it finally disposes of the rights of the parties in the suit or the proceedings. The learned Judge remarked :

'On the same principle, it has been held that when an action is dismissed by the Court of First Instance on the ground that it is barred by limitation or that it is res judicata, or that it is barred by Order 2, Rule 2, or that the suit is not maintainable arid the dismissal is reversed on appeal and the case remanded for trial on the merits, the order is not a final one within the meaning of Section 109. Judged by these tests, the order sought to be appealed against will only be an interlocutory order and not a final order'.

13. The above passage makes it clear that the fact that an important and even a vital issue was decided in the suit, does not make the order a final one, if there arc still other disputes to be decided in the suit.

14. We may also advert to the judgment of the Federal Court in Kuppuswami Rao v. The King, (1948) 1 Mad LJ 103 : (AIR 1949 FC 1). There, the appellant was charged with criminal misappropriation of funds and with signing false certificates of payments of cheques. When the trial began, the accused raised an objection that the prosecution was vitiated by the failure to obtain the sanction of the Governor for the institution of criminal proceedings,

The court overruled the objections and dismissed the application with the result that the trial had to go on before the Magistrate. The accused wanted to take this matter in appeal to the Federal Court. Kania C.J., after referring to the authorities laid down that 'to constitute a final order, there must be such a determination of the points in dispute as would dispose of the proceedings'.

15. To a like effect is the decision of the Supreme Court in Mohammed Amin Brothers v. Dominion of India, 1950 SCJ 139 : (AIR 1950 FC 771.

16. It is unnecessary to multiply citations on this question. Suffice it to say that, in this case, it is 'difficult to posit that the order sought to be appealed against is a final order within the meaning of either Section 109 C.P.C. or Article 133 of the Constitution of India to enable the petitioners to file an appeal to the Supreme Court.

17. In the result, the petition is dismissed with costs.


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