N.U. Beg, J.
1. This is an application under Article 133(i)(c) of the Constitution of India. The applicantin this application is the Chief Inspector of Stamps, U. P., Allahabad.The opposite party is Mrs. Panzy Fernandas, widow of one Sri H. Johnson, who died onthe 19th November, 1958. After his death hissister and brother gave a petition under Section 278of the Indian Succession Act (Act XXXIX of1925) praying for the grant of letters of Administration in their favour. This petition wascontested by his widow Mrs. Panzy Fernandas.
The District Judge of Lucknow by his order dated the 7th November, 1959, allowed the petition. Dissatisfied with the said order the widow of the deceased, namely Mrs. Panzy Fernandas, filed an appeal under Section 299 of the Indian Succession Act in the High Court. This is F. A. F. O. No. 57 of 1962. The memorandum of appeal was presented in the office for preliminary endorsements on the 21st December, 1959. On the same date the Stamp Reporter of the High Court made a report regarding the deficiency of court-fee, and the Counsel for the appellant appended a note contesting the correctness of the office report. On the 25th January, 1960, this memorandum of appeal was presented before Uniyal, J. who ordered that this matter should be put up before the Taxing Officer for report. On the 25th July, 1961, the Taxing Officer passed an order stating that, in view of the conflict of decisions on the point, the case may be laid before the Taxing Judge, Nigam, J. The case came up before the Taxing Judge, Nigam, J. on the 4th September, 1961, when he ordered that it should be referred to a Division Bench. On the 7th December, 1961, a Division Bench of this Court consisting of Nigam and Misra, JJ. reierred the question of court-fee arising in the case for the opinion of a larger Bench. Accordingly the question of court-fee came up for hearing before a Full Bench of which I was a member. On the I2th October, 1962, the Full Bench delivered its judgment holding that in its opinion the court-fee paid was sufficient. Thereafter on the 10th January, 1963, the Chief Inspector of Stamps, U. P., filed the present application praying for a certificate of fitness under Article 133(i)(c) of the Constitution of India.
2. On the date of hearing, the learned Counsel for the opposite parties contested the application, and argued that it was not maintainable on the following grounds :
(1) That no final judgment, decree or order has been passed in the Civil proceedings (F. A. F. O. No. 57 of 1962). Cases on this point will be discussed by me in detail in the subsequent portion of my judgment.
(2) That the appeal itself was a single Judge ease, and only one point arising out of it viz., the question of Court-fee was referred to a larger Bench for obtaining its opinion thereon. The opinion given by the Full Bench will go back to the Stogie Judge for implementation of the same. Hence the order passed was merely of an advisory nature. (Vide Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority of Bombay AIR 1923 PC 148, and Premchand Satramdas v. State of Bihar : 19ITR108(SC) .
(3) If the Court-fee matter is viewed independently of F. A. F. O. No. 57 of 1962, then it cannot be said that the order passed in the said matter is an order in a civil proceeding. (Vide Tobacco . v. State : AIR1951Pat29 ; Krishnaswami v. Conncil of the Institute of Chartered Accountants of India : AIR1953Mad79 ; M/s. Sriram Gulabdas v. Board of Revenue (M. P.) Nagpur AIR 1954 Nag 1 (FB), Alien Berry and Co., Ltd. v. Income-tax Officer, Patna 0044/1956 : 28ITR70(Patna) . Giri v. Dippala Suri Dora AIR 1958 Andh Pra 642, Brij Lal Suri v. State of Uttar Pradesh : AIR1958All621 , Kehar Singh Nihal Singh v. Custodian General, Evacuee Property and Income-tax Officer v. Joti Prasad Agarwal : 44ITR574(All) ).
(4) That the applicant, the Chief Inspector of Stamps, was at no stage a party to the proceedings, the question relating to Court-fee was raised on a report made by the Stamp Reporter of the High Court and subsequently by the Taxing Officer of the High Court. Notice was merely issued to the Standing Counsel according to the practice of the Court. That, however, did not result in making the Chief Inspector of Stamps, U. P. a party to the proceedings.
3. So far as the first point urged by the learned Counsel is concerned, he invited our attention to the opening words of Article 133(i) of the Constitution of India, according to which an appeal lies to the Supreme Court only 'from any judgment, decree or final order in a civil proceeding'. It will have to be conceded in the present case that no decree has been passed- by the Full Bench. The Full Bench has merely expressed its opinion on a preliminary point relating to the appeal. The appeal was a single Judge appeal and will have to go back to a single Judge for hearing and disposal on merits.
4. The crucial question, therefore, that arises in the present case is whether the impugned order is a judgment or final order within the meaning of Article 133(i) of the Constitution of India. This question was discussed at length by me in a judgment delivered by me in the Full Bench case of Savitri Devi v. Rajul Devi : AIR1961All245 . In this case I had referred to three tests which have been formulated by the English Courts for determining the question whether an order is a final order or not. The three tests are as follows : -
(1) An order is final if one of the ways in which the matter can be decided results in the final disposal of the case. This test was laid down in Shubrook v. Tufnell (1882) 9 QBD 621, and is styled by me in Savitri Devi's case : AIR1961All245 as the test in Shubrook's case, (1882) 9 QBD 621.
(2) An order is final if it disposes of the matter in the dispute finally whichever way it is decided. This test was laid down in the case of Salaman v. Warner (1891) 1 QBD 734, and is styled by me in Savitri Devi's case, : AIR1961All245 as the test in Salman's case, 1891-1 QB 734.
(3) An order is final if it finally disposes of the rights of the parties in dispute in the civil proceedings in question. This test was laid down in the case of Bozson v. Altrincham Urban District Council, (1903) 1 KB 547, and is styled by me in Savitri Devi's case : AIR1961All245 as the test laid down in Bozson's case, (1903) 1 KB 547.
5. So far as the first test Is concerned, the cases of the Privy Council as well as of the Federal Court discussed by me in Savitri Devi'scase : AIR1961All245 indicate that this test has not been approved of by either of them as a satisfactory one. The actual order passed in the present case was that the court-fee paid was sufficient. This case did not end the case. On the other hand, it set the case into motion. Even if this Court had held the other way, and decided that the court-fee paid was insufficient, the case would have gone back to ihe single Judge for consideration of the question whether time should be given to the appellant to make-up the deficiency. If the single Judge had given the time, and had further ordered that the appeal would be dismissed if the court-fee was not made good by the appellant within the time allowed in the order, the case would be dismissed only if the deficiency was not made up within the period given. If, however, the deficiency was made up by the appellant, the case would not the disposed of as a result of the present order. The entire case was not referred for disposal to the Full Bench. In the present case the only question referred was a legal one, and that related to court-fee. The case itself, therefore, was not fixed for disposal, before the Full Bench. Even if, therefore, the first test is applied, the order passed in the present case could not be treated as the final order.
6. As pointed out by me in Savitri Devi's : AIR1961All245 case the Federal Court as well as Privy Council have approved of the test laid down in Salaman's case, 1891-1 QB 734 or that laid down in Bozson's case, 1903-1 KB 547. In the present case the impugned order cannot obviously be treated to be a final one either according to the test laid down in Salman's case, 1891-1 QB 734 or according to the test laid down in Bozson's case, 1903-1 KB 547.
7. One of the ways in which the case could be decided was to hold that the amount of court-fee paid was sufficient. In fact, the Court actually decided that the court-fee paid was sufficient. The order cannot, therefore, be treated as a final order according to the test laid down in Salaman's case, 1891-1 QB 734.
8. The rights of parties which were in dispute in the civil proceeding pending in the High Court were to be disposed of in the appeal filed under Section 299 of the Indian Succession Act (F. A. F. O. No. 57 of 1962). The question relating to the court-fee was merely a preliminary matter that related to the question of entertainability of the memorandum of appeal. This question alone was referred to the Full Bench for its opinion. The decision of the question relating to court-fee had nothing, to do with the substantive rights of the parties in dispute in appeal. It only related to the question of the entertainability of the memorandum of appeal by the High Court under Section 4 of the court-fees Act. The decision on ihe question of court-fee left the First Appeal from Order, which was the civil proceeding pending in the High Court, still alive. The order in question, therefore, clearly does not dispose of the rights of parties in dispute in the civil proceedings instituted in this Court, viz., F. A. F. O. No. 57 of 1962. It cannot, therefore, by any stretch of imagination be said to be a final order according to the test laid down in Bozson's case, 1903-1 KB 547.
9. Coming now to the Indian cases, the first case to which reference might be made is that of Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Eatanchand AIR 1920 PC 86. In the said case Viscount Cave who delivered the judgment on behalf of their Lordships of the Privy Council expounded the meaning of the expression 'final order' as follows :
'The question as to what is a final older was considered by the Court Appeal in the case of (1891) 1 QB 734 and that decision was followed by the same Court in the case of (1903) I KB 547. 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.'
As observed already, in the present case also the order regarding court-fee does not finally dispose of the rights of the parties, and is not a final order either according to the test laid down in Salaman's case, 1891-1 QB 734 or according to the test laid down in Bozson's case 1903-1 KB 547.
10. The next case of their Lordships of the Privy Council in which the meaning of the expression 'final order'' was expounded in greater detail is that of V.M. Abdul Rahman v. D.K. Cassim and Sons . In the said case Sir George Lowndas while referring to the judgment of Lord Cave quoted above observed as follows :
'Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts. that the test of finality is whether the order finally disposes of the rights of the parties.' and he held that the order then under appeal did not finally dispose of those rights, but left them 'to be determined by the Courts in the ordinary way.' It should be noted that the appellate court in India was of opinion that the order it had made 'went to the root of the suit, namely, the jurisdiction of the Court to entertain it,' and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit.'
11. In the present case the order in question as already observed, has not finally disposed of the rights of the parties. If the finality is to be determined in relation to the suit, as observed by their Lordships of the Privy Council in this case, then the finality must relate to the rights of parties in dispute in the original proceedings. This matter is being agitated in First Appeal From Order No. 57 of 1962 and, as mentioned above, the ultimate and substantive rights of the parties which are to be agitated in that appeal are fully alive and remain to be decided.
12. The question regarding court-fee is ia fact a preliminary matter. It is akin to the question of sanction, jurisdiction, limitation and other like matters which may be required to be decidedas preliminary questions before entertaining the main proceedings itself. In Dr. Hori Ram Singh v. Emperor , Sulaiman, J. while elucidating the meaning of the terms 'judgment'and 'final order' referred to a passage from Black on Judgments. The passage in question runs as follows :
'Black in his book on Judgments denned a judgment as the determination or sentence of the law pronounced by a competent Judge or Court as the result of an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal duty or liability does or does not exist. An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some step, question or default, arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of Court. On the other hand the learned author defined an order as the mandate or determination of the Court upon some subsidiary or collateral matter arising in an action, not disposing of the merits but adjudicating a preliminary point by directing some steps in the proceedings.'
13. In the present case the question determined appears to relate merely to a subsidiary or collateral matter 'arising out of the main proceedings and merely adjudicates a preliminary point relating to the initial step taken in that proceeding. It cannot, therefore by any means be termed as a final order in the said proceedings.
14. In the present case the question determined appears to relate merely to a subsidiary or collateral matter arising out of the main proceedings and merely adjudicates a preliminary point relating to the initial step taken in that proceeding. It cannot, therefore by any means be termed as a final order in the said proceedings.
15. In S. Kuppuswami Rao v. The King a question arose whether the order passed in preliminary proceedings renting to sanction under Section 197 of the Code of Criminal Procedure read with Section 205 of the Government of India Act, 1935, can be considered to be a final order. While determining the nature of such an order, Kania C. J., observed as follows :
'The question then is whether in the present criminal case the order is a judgment, decree or final order of the High Court' It is clearly not a decree. It is also not a judgment, as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the Court finally.'
In this case, their Lordships of the Federal Court were obviously thinking of the test laid down in Salaman's case, 1891-1 QB 734 mentioned above. As already pointed out the impugned order in the present case is in the nature of a preliminary objection, and cannot be regarded as a final order according to the test approved of by their Lordships in this case. In another portion of the same judgment it was observed that both in criminal as well as in civil cases, the wider interpretation of the words 'judgment' or 'final order' should not be accepted, and further that the test in both civil as well as criminal cases in this regard is identical.
16. The matter was considered in great detail in a judgment of the Federal Court in the case of Mohammad Amin Brothers Ltd. v. The Dominion of India AIR 1950 FC 77 by B. K. Mukherjea, J. In this case Mukherjea, J. while dealing with the matter observed as follows :
'The expression 'final order' has been used in contradistinction to what is known as 'interlocutory order' and the essential test to distinguish the one from the other has been discussed and formulated in several cases decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in and the iaw on the point, so far as this Court is concerned, seems to be well settled. In full agreement with the decisions of the Judicial Committee in 47 Ind App 124 : (AIR 1920 PC 86) and and the authorities of the English Courts upon which these pronouncements were based, it has been held by this Court that the test for determining the finality of an order is, whether the judgment or order finally disposed of the rights of the parties. To quote the language of Sir George Lowndes in :
'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 fact that the order decides an important and even a vital issue is by itself not material. If the decisions on an issue puts an end. to the suit, the order will undoubtedly be a final one, but if the suit is still left alive asd has got to be tried in the ordinary way, no finality could attach to the order.'
In the above case their Lordships of the Federal Court obviously approved of the test laid down in Bozson's case, 1903-1 KB 547 mentioned above. I have already shown that the present order is not a final order if the test laid down in Bozson's case, 1903-1 KB 547 is applied to the present case. Supposing the question of court-fee had been raised as a preliminary question in the trial court, and a preliminary issue framed on the point decided by answering the question in the plaintiff's favour and holding that the court fee paid was sufficient, could such an order be said to be a final order in the suit The answer to this question will in my opinion have to be given in the negative. The appeal itself is nothing but a continuation of the suit, and there appears to be no valid reason for holding that the question when raised at the appellate stage calls for a different answer.
17. Referring to the judgment of the High Court in the above case Mukherjea,. J. further observed as follows :
'The High Court did obviously dispose of one principal point in controversy between the parties, namely, whether Section 226(1) Government of India Act was a bar to the entertainment of the winding up petition by the original side of the Court,but the decision on that issue is a purely interlocutory decision which merely determines that the proceeding is triable by the Court. There has been no adjudication on the rights of parties and that is still to be made under the terms and conditions set out in the order of the appeal Court.'
In the present case also the question that has been determined is whether Section 4 of the Court Fees Act is a bar to the entertainability of the memorandum of appeal. All that can be said is that it is a crucial and even a vital point arising at the very inception of the case, but the fact remains that it does not decide the rights of the parties in the civil proceedings which are left untouched and which still remain pending. The order in question cannot, therefore, be termed as a final order.
18. The case of Hossen Kasan Dada (India) Ltd. v. State Government of Madhya Pradesh, AIR 1952 Nag 305 is a Full Bench case of the Nagpur High Court. This is a judgment of Sinha, C. J. (the present Chief Justice of India) and Hidayatullah and Mudholkar, JJ. (at present Judges of the Supreme Court of India). While discussing the meaning of the term 'final order' the judgment of the Full Bench stated their opinion as follows :
'We are further of the opinion 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. In the present case, the order of this Court is not an order on merits, that is, with regard to the applicant's liability to pay the tax, and does not determine any right except the one to prosecute the appeal before the Commissioner of Sales Tax without paying the tax assessed on it. The right to continue the appeal without paying the tax has nothing to do with the merits of the appeal, and therefore the decision of this Court negativing the applicant's contention cannot be regarded as a 'judgment' or a 'final order'. This Court has done no more than to point out to the applicant that the Act must be complied with. The view which we take finds support from a decision of the Bombay High Court in P. V. Rao v. Ahmed Haji AIR 1949 Bom 125.
In this view, we cannot grant a certificate of fitness for appeal to the Supreme Court under Article 133 of the Constitution and dismiss the application.'
In the present case also the question is whether the appellant can continue the appeal without paying the additional court-fee demanded from him. The question had nothing to do with the merits of the appeal. The decision of the Court on the question of court-fee cannot, therefore, be regarded as a final order according to the principles laid down in the above case.
19. In Asrumati Debi v. Rupendra Deb : 4SCR1159 their Lordships of the Supreme Court were discussing the nature of an order of transfer of a suit under Clause 13 of the Letters Patent. While discussing the question, their Lordships observed as follows :
'The order in the present case neither affects the merits of the controversy between the partiesin the suit itself, nor does it terminate or dispose of the suit on any ground.'
In the present case also the order does not affect the merits of the controversy between the parties either in the suit or in the appeal nor does it terminate or dispose of the appeal.
20. The question was considered also in a Full Bench case of the Punjab High Court in Kapur Singh v. Union of India . In this case Kapur, J. (subsequently a Judge of the Supreme Court) after reviewing the relevant case law on the subject concluded as follows :
'A review of all these decided cases shows that in order that a decision should fall within the definition of the word 'judgment' or 'final order' (1) it must finally decide the rights of the parties and the word 'judgment means a final judgment and not an interlocutory judgment and by which right to the relief claimed is decided with regard to all matters in issue, and (2) an order is final if it finally disposes of the rights of the parties and if it does not, it is not final even though it may decide a vital issue in the case.'
In the present case also a preliminary point which may be vital to the case has been decided. It cannot, however, be said that the rights cf the parties have been adjudicated.
21. The meaning of the term 'determination of the rights of the parties' was expounded in a judgment of a Division Bench of the Rajasthan High Court consisting . of Wanchoo, C. J. (at present a Judge of the Supreme Court of India) and Dave, J. in Amsingh v. Jethmal . In this judgment it was observed as follows:
'The term 'determination of the rights of the parties' refers to the substantive rights of the parties with regard to the merits of the case and not to other disputes between the parties which are ancillary to the subject-matter of the suit. For instance, question relating to the jurisdiction of the Court or limitation and other preliminary points of the sort, if decided in favour of the plaintiff would not determine the rights of the parties in relation to the suit.'
In the present case also only a preliminary point has been determined relating to court fee leviable on the memorandum of appeal, and the substantive rights of the parties have been left undecided.
22. In a Division Bench case of the Punjab High Court in Kuldip Singh v. Maqbul Kaur, it was observed as follows :
'The finality of the order depends upon the effect of the order that is actually made and not of the one that might or is sought to be made. It is not the potentiality of the point at issue to put an end to the legal proceedings that has to be looked into, but the actual order that is made thereon.'
In the present case the actual order in the matter of court fee happens to be in favour of the appellant. If it had been against the appellant and had subsequently led to the rejection of the memorandum of the appeal on that ground, then the position might have been different. What would be the situation in that case we are not called upon to determine. I do not, therefore, express any opinion on that point. The order as actually passed only holds that the appeal as filed is maintainable as the court-fee paid is sufficient. It merely decides the preliminary question of the maintainability of the appeal in favour of the appellant. It cannot, therefore, be said to be a final or the last order in the case. In fact, far from being the final or the last order, it is the very first or the initial order which sets the machinery of appeal into motion and gives momentum to it.
23. In the case of Syedna Taher Saifuddin Saheb v. State of Bombay : AIR1958SC253 , the question about the retrospcctivity of an Act was the subject-matter of a preliminary issue. Dealing with the said question, their Lordships observedas follows :
'The question is whether in the events which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined'.
Later on, again, it was observed as follows :
'But apart from this, there is another formidable obstacle in the way of the appellant. Under Article 132, an appeal lies to this Court only against judgments, decrees or final orders. That was also the position under Section 205 of the Government of India Act. Now, the order appealed against is only a decision on one of the issues, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (supra), there was a decree, and the requirements of section 205 were satisfied. Here, there is only a finding on a preliminary issue, and there is no decree or final order'.
In the present case also there is merely a finding on the preliminary issue and there is no decree, final order or judgment.
24. In a Division Bench case of the Allahabad High Court in Bhagwan Dass and Co. Private Ltd. v. Income Tax Officer, Dehra Dun : AIR1958All800 following a previous Full Bench case of the same Court, namely, Mahomed Mahmood Hasan Khan v. Government of Uttar Pradesh : AIR1956All457 , it was held that in order to be a judgment the order must conclusively determine the rights of the parties. It was further held that in order to be a final order, the order in question should not leave the original proceedings in the Court below alive, and must result in a final determination of the rights of the parties.
25. Reference may also be made to the case of Rajeswara Rao v. Venkataramarao : AIR1961AP310 . The law laid down in the case is summarised in the headnote as follows :
'An appellate order, allowing the appeal and directing the lower Court to entertain an application filed under Order 9 Rule 9 Civil P. C. treating it as one under Order 47, Rule 1 and to collect court-fees on the review petition, is not a final order within the meaning of Article 133(1). It is an incidental order which does not finally dispose of the rights of the parties, nor does it determine the suit. Even if it be accepted that in substance it is a final disposal of the proceedings initiated in the trial Court under Order 9 Rule 9, the suit, at the most, would, be restored and hence it would come to life requiring the rights of the parties to be determined according to law. and : AIR1958SC253 and M. Venkayya v. P. Venkatarama Rao AIR 1956 Andhra 126, Rel. on'.
In the present case, there is not even an order to collect court-fees from the appellant. The order is that the court-fee already paid by her is quite sufficient. If, for example, the Taxing Officer had decided that the court-fee paid by the appellant was sufficient, it would be difficult to hold that his order would attract the application of Article 133. In the present case merely an opinion has been given on a reference by him. The opinion is to the effect that the memorandum of appeal was properly stamped, that the appeal as presented was entertainable, and should not be thrown out in limine under Section 4 of the Court Fees Act.
26. I have had occasion to discuss the matter at length in the Full Bench case of : AIR1961All245 , reference to which has already been made by me in the earlief portion of this judgment. In the judgment delivered in that case by me the meaning of the expression 'final order' has been expounded as follows :
(1) That an order is final only if it finally disposes of the rights of parties :
(2) That the finality of the order must be determined in relation to the suit;
(3) That the order cannot be treated to be a final order if the suit is still left a live suit for the purpose of determining the rights and liabilities of the parties in the ordinary way;
(4) That the mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case is not enough to make the order a final one'.
Similarly, the meaning of the term 'judgment' has been expounded at the close of the judgment in the said case as follows :
'In the end, the crucial question, that calls for answer is 'what is the meaning of the term' 'judgment' in Article 133 of the Constitution?' I Venture to suggest that, as a result of the aforementioned discussion, it follows that a 'judgment' as contemplated therein should fulfil the following three conditions :
1. It should terminate the proceedings in the High Court.
2. It should determine the rights and liabilities of the parties.
3. The determination of the rights and liabilities as envisaged in condition No. 2 should be on merits, and should further be final and conclusive so as to cover the entire range of substantive rights and liabilities which formed the subject matter of real controversy in the suit or proceedings which initially gave rise to the dispute'.
According to the test laid down in the above case, the present order can be considered to be neither a final order nor a judgment within the meaning of the said terms as used in Article 133 of the Constitution of India.
27. It is argued on behalf of the applicant that if this application under Article 133 of the Constitution is held to be not maintainable, then the applicant will be left with no other relief. In reply it is argued that the applicant may have a relief under Article 136 of the Constitution of India. No doubt the relief under Article 136 is not a matter of right. If, however, the Constitution makers deliberately wanted to curtail the ambit of right to relief under Article 133, and to widen the sphere of discretion under Article 136, it. will not be open to the Courts to entertain the application as a matter of right under Article 133 when such a course not only cuts across the tenor and import of the express words used in the said provision of law but also runs counter to the entire current of case law on the point as expounded by the highest judicial bodies including their Lordships of the Privy Council and the Federal Court.
28. I am, therefore, constrained to hold that the present application is not entertainable under Article 133 of the Constitution and should be rejected in limine on the above ground.
29. In view of the fact that I have formed an opinion against the applicant on the first point, I do not think it necessary to enter into the merits of the other three points that were urged on behalf of the opposite party.
30. For the above reasons, I am of opinion that this application should be dismissed.
31. I Have had the advantage of reading the judgments of my learned brothers. There is nothing in Article 133 of the Constitution to suggest that the right of appeal granted by it is only of a party to the civil proceeding in which the judgment, decree or final order was passed. It is true that a right of appeal is a creation of a statute, but when a statute creating a right wants it to be restricted to a party aggrieved by the order, it generally says so expressly. Here the right of appeal is created without reference to the person in whom it vests and, while it may be open to the Supreme Court to declare that a person who was not a party to the civil proceeding has no right of appeal, it will not be open to a High Court to refuse to grant a certificate on the ground that the person asking for it, not being a party to the civil proceeding has no right of appeal. The right is of appeal to the' Supreme Court and it is for the Supreme-Court to decide whether it exists or not, and not for a High Court. The only concern of the High Court is in respect of granting the certificate asked for it has to see whether a case is made out for granting' the certificate asked for or not If it is made out, it should grant it, without/going into the question whether the person asking for it has a right of appeal or not, or whether an appeal lies at all or not. The question is of jurisdiction of the Supreme Court to entertain the appeal and the question must be decided by it; a High Court cannot usurp the jurisdiction of the Supreme Court and decide whether an appeal lies to the Supreme Court or not. Even if it be true that the right conferred by Article 133 is in a party, I see no reason for saying that the Chief Inspector of Stamps was not a party. He was not a party to the proceeding which started on an application for a succession certificate or in the appeal filed under Section 299 of the Indian Succession Act, but he was a party to the order against which he wants to go up in appeal. If it is necessary that an applicant for a certificate must be a party, it should be enough if he is a party to the judgment, decree or final order and is not required to be a party to the civil proceeding itself. The right being of an appeal from the judgment, decree etc., it should be enough that he is a party to it in the sense that he is bound by it and is passed after hearing him. His claim to a right of appeal does not become stronger if he is a party to the proceeding also.
32. The Chief Inspector of Stamps was a party to the judgment, decree etc., because he was the only other party concerned in the matter in respect of which the order under appeal was pronounced. This Court decided the question of the Court-fee payable on a memorandum of appeal filed under Section 299 of the Succession Act and the question had to be decided as between the appellant, who had to pay the court-fee, and the Chief Inspector of Stamps, who was interested in seeing on behalf of the State, the recipient of the court-fee, that proper court-fee was paid. It cannot be disputed that in respect of something to be paid, whether in cash or in kind, the persons interested are the payer and the receiver, and here the Chief inspector of Stamps represents the receiver. The respondent is a party to the appeal but is not at all concerned in the matter of the court-fee to be paid by the appellant and to be received by the State us represented by the Chief Inspector of Stamps; he is, therefore, not a party to the dispute about the court-fee payable on the memorandum of appeal. The dispute can be only between the appellant and the Chief Inspector of Stamps. That is why the Chief Inspector of Stamps was heard by this Court every time the matter was dealt with by it. The appeal came up before one Judge of this Court and he gave notice to the Chief Inspector ot Stamps before deciding whether the court-fee paid was sufficient or not. When he referred the matter to a bench, the bench again gave notice to him and heard him. The bench referred it to a Full Bench which again gave notice to him and heard him. Surely, if he was not interested in the matter, this Court would not have taken all this trouble of hearing him and he must have been heard only because he was interested' in the rnatter and he had to be heard before a decision adverse to his official interest was finally given. He was not heard simply as amicus curiae. When he was given a right to make his submissions in respect of the matter on account of his being interested, he should have a right of making his submissions to the Supreme Court when this Court did not accept them. A person who is interested, and directly interested, in a dispute is a party to it; therefore, the Chief Inspector of Stamps was a party to the dispute, the other party being the appellant. It does not matter if he was not arrayed as a party in the memorandum of appeal. Arraying him as a pro forma 'respondent would have been only a formality,
33. An appeal lies from a judgment, decree etc., in a civil proceeding. Here the impugned order was passed in an appeal under the Indian Succession Act, which undoubtedly was a civil proceeding. It is immaterial that the order was in respect of a taxation matter, namely, that of court-fee payable on the memorandum of appeal. That the question that was decided was in respect of taxation could not change the nature of the proceeding from a civil proceeding to a taxation, proceeding. When the Supreme Court held that a proceeding under the Income-tax Act or the Sales Tax Act is not a civil proceeding it referred to a proceeding which was itself under a Taxation Act Here the proceeding was not under the Court-fees Act, though the question that arose in it and was decided by the impugned order was in respect of taxation through court-fee.
34. Under Article 133 an appeal lies only from a judgment, decree or final order. It may be conceded that the impugned order deciding the court-fee under a particular article of Schedule II of the Court-fees Act is not a judgment or a decree, but I do not agree that it is not a final order. A final order must decide the matter finally and, as regards the question of payment of court-fee, the matter was finally decided under the impugned order of this Court, even though the appeal itself is pending. It is to be noted that the matter decided was in respect of court-fee, having nothing whatsoever to do with any question of rights of the parties to the appeal, or of merits of the cases set up by them in the trial Court and in appeal. The question of court-fee had absolutely nothing to do with their rights and merits of their cases and, therefore, could be decided finally, even though the appeal was pending and there was no final decision in respect of their rights and merits of their cases. What is required for Article 133 is that a final order exists in a civil proceeding and not that it terminates a civil proceeding. Here there was a civil proceeding, namely, the appeal, and there was a final order, namely the order that the court-fee on the memorandum of appeal was payable under a certain article and the requirements of Article 133(1) were fulfilled. It is not necessary that the final order must be one which disposes of the civil proceeding itself. If the order is connected with the rights of the parties which are the subject-matter of a proceeding, either directly or incidentally, it cannot be said to be final so long as the proceeding is pending. An order disposing of an application for stay, or injunction, or receivership may be said to be connected with the rights of the parties or the merits of the cases set up by them in a suit or appeal and any order passed in respect of them may not be said to be a final order so long as the suit or appeal is pending; it is really an interlocutory order. The same, however, cannot be said in respect of an order as to the amount of the court-fee payable, on a memorandum of appeal. As it has nothing to do with the merits of the proceeding in which it is passed whether it is final or not cannot depend upon whether the proceeding is pending or not. One reason why an appeal from an interlocutory order is prohibited or not allowed is that there should not be piecemeal appeals and that if a person aggrieved by an interlocutory order is successful at the end of the proceeding he does not really suffer, but the case of the Chief Inspector of Stamps is different; if the order passed by this Court is wrong he is aggrieved and will remain aggrieved regardless of the final result of the appeal. Whatever order is passed in the appeal will have nothing to do with the question of the court-fee payable on the memorandum of appeal and the Chief Inspector of Stamps will never get any relief, whether the appeal is allowed or dismissed. If he is to be allowed to appeal, he must be allowed to appeal at once and no useful purpose is to be served by requiring him to wait till the appeal is decided. The final decision of the appeal will not supersede or engulf the order passed adversely against him and will not restore him to his right, if any has been taken away by it. The order regarding payment of court-fee is a permanent order and not limited in its operation only to the dura-lion of the proceeding in which it is passed, as an interlocutory order is. I am, therefore, of the opinion that the impugned order is a final order.
35. Even otherwise I think the matter is so doubtful that this Court should not usurp the jurisdiction of the Supreme Court and should not decide finally and irrevocably that there is no. final order and that consequently the Chief Inspector of Stamps has no right of appeal and should not refuse to issue a certificate on this ground. As I said earlier this Court's primary duty is to consider whether a case for the grant of the certificate asked for is made out or not and if it is, it should, grant the certificate, leaving it to the Supreme Court to decide whether on its basis an appeal lies to it or not This Court cannot bind the Supreme Court by its view that an appeal lies or does not lie; it is for the Supreme Court to decide whether it lies or not. Article 133 imposes two conditions for the availability of a right of appeal, (1) that it is from a judgment, decree or final order in a civil proceeding and (2) that the appellant has got a particular certificate. These two are independent conditions and the second condition is not dependent on the first condition. The right of appeal depends on both, but neither of them depends on the other, and the High Court concerned with the fulfilment of the second condition is not concerned with the question whether the first is fulfilled or not. The right of appeal, and not the High Court's power to give a certificate, depends on the fulfilment of the first condition. If this Court erroneously holds that an appeal does not lie and, therefore, withholds a certificate, even though the conditions of any of the Clauses (a), (b) and (c) are fulfilled, it does irreparable harm to the applicant. If the certificate has been withheld he cannot file an appeal as a matter of right. It is a constitutional right of a person armed with a certificate to file an appeal from a judgment, decree or final order in a civil proceeding. This right cannot be taken away by the High Court by giving a wrong decision on the question whether there is a judgment, decree or final order or not, or on the question whether it is a civil proceeding or not, or on the question whether the person applying for a certificate has a right of appeal or not. There is no appeal from a High Court's refusal to grant a certificate and a person who has been wrongly refused a certificate can only apply to the Supreme Court for special leave under Article 136, but this is not a matter of right at all. It is left at the discretion of the Supreme Court to grant special leave or not; no person can ask for special leave as a matter of right Article 136 only confers power upon the Supreme Court to grant special leave for appeal. If there is any right of appeal it is conferred by Article 133. Consequently what a Supreme Court may grant to him under Article 136 can be no substitute for what he has a right to get under Article 133. No High Court has a right to refuse a certificate on the ground that the applicant can ask for special leave under Article 136; that would be tantamount to depriving a person of his constitutional right. A certificate is not to be refused on the ground that another remedy, even, an adequate alternative remedy, exists. Even if an alternative remedy exists, it is not for the High Court to compel him to avail himself of it instead of filing an appeal in the Supreme Court under Article 133.
36. When a High Court finds that an applicant for a certificate has clearly no right of appeal even if he gets a certificate, it may refuse to grant him a certificate, but this power should not be exercised when there is the slightest reasonable doubt. In this case it cannot be said that the Chief Inspector of Stamps has clearly no right of appeal and, therefore, this Court should not refuse to grant him the certificate asked for, if otherwise he has established his case.
37. The case is undoubtedly a fit one forappeal to the Supreme Court. The question of the court-fee payable on the memorandum of appeal is highly controversial. It is evident from the fact that it was referred by one Judge to two Judges and by two Judges to three Judges. There had been conflicting decisions on the point and even this Court has not found a clearly convincing answer. It has been forced to ignore the distinction between an appeal and a memorandum of appeal and the distinction between a memorandum of appeal and an application and to treat an appeal as an application. Sri Saraswati Prasad argued that after the controversy was set at rest by the Full Bench it cannot be said to be a fit case for appeal. It is not enough that a controversy has been set at rest by a Full Bench; it must be set arrest by a convincing decision. The Full Bench had to decide the question one way or the other and it cannot be said that in whichever way it decided it set the controversy at rest. Having regard to the nature of the controversy and the decision given by the Full Bench I think it is a case in which, an authoritative pronouncement of the Supreme Court is called for and a certificate of fitness for appeal should be granted. However, as my learned brothers are of a different view, this application will have to be rejected.
S.N. Katju, J.
38. I respectfully agree with the views expressed by my brother Beg and am of the opinion that this application should be dismissed.
39. BY THE COURT: In accordance with the opinion of the majority, this application is dismissed with costs.