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Sm. Inda Devi Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Appeal Nos. 30 and 31 of 1955
Judge
Reported inAIR1957All116
ActsConstitution of India - Articles 133, 133(1) and 226; Code of Civil Procedure (CPC) , 1908 - Sections 2(9), 109, 109(1) and 110; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 20; Uttar Pradesh Tenancy Act, 1939 - Sections 273
AppellantSm. Inda Devi
RespondentBoard of Revenue and ors.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateJ.N. Agarwala and ;Mukund Lal Agarwala, Advs.
Excerpt:
.....it has been well-settled that the word 'judgment' in article 133 has been used in the sense of a decision finally determining the rights of the parties in the proceeding and not as defined in the code of civil procedure, reliance was placed by the counsel for the opposite parties on the case of shriram hanumanbux v. where a decision of a case is based on a ground like this, that decision cannot be regarded either as a judgment, decree or final order .the finality must be finality in relation to the dispute and further, the judgment or the order must affect the merits of the case between the parties by determining some right or liability'.in the case of west jamuria coal co. that objection must fail in view of the fact that with these orders the petitions were disposed of finally and..........of section 595 of the code of civil procedure of 1882, an appeal lay to the privy council from any final decree and under clause (c) ah appeal lay from any decree if the high court certified the case to be a fit one for appeal and decree against which appeals could be filed under the three clauses were separately described. the qualifying words that it should be a final decree, occurring in clauses (a) and (b) were not to be found in clause (c) with the result that under clauses (a) and (b) of section 595, an appeal lay from any final decree, final judgment or final order but under clause (c) no such limitation was placed. the code of 1908 maintained this distinction in section 109 but article 133 of the constitution has adopted a new method and has removed the distinction given in the.....
Judgment:

Mehrotra, J.

1. These are two applications under Article 133 of the Constitution praying that leave be granted to the applicant to appeal to the Supreme Court against the judgments of this Court in Civil Misc. Writs Nos. 1358 and 1359 of 1954.

2. The facts, as set out in the petition briefly are that Sri Shankar Lal, father of the applicant, who was a zamindar of village Deorampur, had certain sir plots Nos. 88, 130, 131 and 148 in the said village. Two suite were filed on or about 29-9-1947, which were Nos. 103 and 104 of 1947 under Sections 175/179, U. P. Tenancy Act against the opposite parties Brij Lal, Sewa Ram and Kalika for ejectment. These two suits along with two other suits, which were filed against one Bachchan, were consolidated and were heard together by the Assistant Collector, First Class, Parrukhabad who decreed the suits for ejectment. The petitioner executed her decree and got possession over the plots on 29-6-1948.

Appeals were filed by the opposite parties to the Commissioner and they were consolidated with the appeals filed by Bachchan against the decrees in his suits. The appeals were allowed on the ground that the plaints did not contain certain particulars as required by Section 19 of the U. P, Tenancy Act and the suits were dismissed. Two second appeals were filed before the Board of Revenue which were consolidated with two other appeals filed in suits, against Bachchan. The delivery of possession was stayed during the pendency of these appeals.

The appeals came up for hearing before a single Member of the Board of Revenue, Sri A.N. Sapru who, by his order dated 7-12-1953, dismissed the appeals. Applications for review were filed by the applicant which were admitted and notice was issued to the opposite parties. On 3-5-1954, the applications were heard by Sri A.N. Sapru who allowed the review applications and set aside the order dismissing the appeals and maintained the Judgments of the trial Court decreeing the suits for ejectment. The judgment was sent for 'concurrence' to another member of the Board who concurred with the order proposed by Sri A.N. Sapru on 5-5-1954.

Other applications were thereafter made on 18-5-1954 by the opposite parties for the review of the order of the Board of Revenue dated 3-5-1954 on the review applications on several grounds. The main contention, in the applications for review was that Section 20, U. P. Zamindari Abolition and Land Reforms Act applied to the facts of the case and the appeals should have been dismissed. These applications for review were admitted and 4-1-1955 was fixed for final hearing of the review applications.

Applications under Article 226 of the Constitution were filed in this Court which were numbered 1358 and 1359 of 1954 and were admitted on 16-12-1954. On 29-3-1955 these petitions came up for hearing before this Bench and were rejected. During the pendency of the writ petitions here, the hearing of the review applications was stayed. The present applications have been filed for leave to appeal to the Supreme Court under Article 133 of the Constitution against the order of this Bench rejecting the writ petitions on 29-3-1955 :

3. By our order dated 26-8-1955, the following issues were sent down to the Court below for decision :

'1. What was the value of the properties that were made the subject-matter of the following suits for ejectment

Suits Nos. 102, 103, 104 and 105 of 1947.

2. What was the value of the subject-matter of each suit?.'

By its decision dated 21-12-1955, the Assistant Collector, First Class, has sent his findings on the two issues and has held that the value of the properties which were the subject-matter of the suits Nos. 102 to 105 of 1947 is Rs. 11,600/- and the value of the subject-matter in suit No. 102 is Rs. 1,000/-, in suit No 103 is Rs. 3,900/-, in suit No. 104 is Rs. 3,900/- and in suit No. 105 is Rs. 2,800/-. Objections have been filed on behalf of the petitioner to the findings of the Assistant Collector. When they came up for hearing before us, the counsel for the opposite parties raised a preliminary objection to the grant of these petitions.

4. The contention of the opposite parties is that the judgment of this Court delivered on 29-3-1955, against which the petitioner proposes to file an appeal to the Supreme Court, is not a judgment, decree or final order within the meaning of Article 133 of the Constitution and consequently no appeal lies against the decision to the Supreme 'Court. Article 133 provides as follows :

'(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or. such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court;

and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.'

Unless the decision of the High Court can amount to a judgment, decree or final order in a civil proceeding, no appeal would lie to the Supreme Court from such an order under Article 133 of the Constitution. It is, therefore, necessary to consider whether decision of this Court dated 29-3-1955 is a judgment decree or final order in a civil proceeding. It has been well-settled that the word 'judgment' in Article 133 has been used in the sense of a decision finally determining the rights of the parties in the proceeding and not as defined in the Code of Civil Procedure,

Reliance was placed by the counsel for the opposite parties on the case of Shriram Hanumanbux v. State of Madhya Pradesh (S) AIR 1955 Nag 257 (A). In that case an application had been made to the State Government for the grant of a prospecting licence in respect of a certain area. He was informed by the State Government that such a licence had been granted to him. Another person, who was interested in the land and had applied for the grant of a prospecting licence, had been refused the licence by the State Government. He went up in review to the Central Government. The Central Government rejected his application but issued a direction to the State Government to modify its order and reduce the area covered by the earlier application which was granted.

Under the direction of the Central Government when the area was reduced by the State Government, the petitioner made an application under Article 226 of the Constitution to the Nagpur. High Court for quashing of the order of the Central Government issuing the direction. The main ground, which was urged in the petition, was that the direction had been issued by the Central Government without giving him a hearing which was against the principles of natural justice. The petition was rejected and it was observed that the petitioner had been given the necessary hearing.

A petition was filed for the grant of leave to go up in appeal to the Supreme Court. It was observed by a Division Bench of the Nagpur High Court that the order of the High Court could not be regarded as a judgment or a final order within the meaning of Article 133 of the Constitution. Particular tress was laid on the following observations made by Sinha C.J. at page 257 of the Report.

'The mere fact that the order impugned has decided an important and even a vital issue is not by itself conclusive of the matter, unless the decision puts an end to the litigation. The decision or order, in order to be called a judgment, must affect the merits of the controversy between the parties by determining some right or liability. In the instant case this Court did nothing more than refuse to interfere with the orders passed by the State Government and the Central Government'.

Reliance was placed in the Nagpur Case on the case of Justice of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd., 17 Suth W. R. 364 (B). The other Judge, Mudholkar J., agreed with the order proposed by Sinha C. J. and observed that:

'Where a decision of a case is based on a ground like this, that decision cannot be regarded either as a judgment, decree or final order ...... The finality must be finality in relation to the dispute and further, the judgment or the order must affect the merits of the case between the parties by determining some right or liability'.

In the case of West Jamuria Coal Co. v. Bholanath Roy AIR 1954 Cal 424 (C) it was observed that:

'The word 'judgment' was not intended to bring in orders, not final. The orders which 'do not terminate the suit or proceeding are not within the contemplation of that Article.'

This was an application for leave to appeal against the order of remand passed in a second appeal. The history of the provisions of the Code of Civil Procedure dealing with the right of a party to go up in appeal to the Privy Council was fully considered in this case and it was observed that under Clauses (a) and (b) of Section 595 of the Code of Civil Procedure of 1882, an appeal lay to the Privy Council from any final decree and under Clause (c) ah appeal lay from any decree if the High Court certified the case to be a fit one for appeal and decree against which appeals could be filed under the three clauses were separately described.

The qualifying words that it should be a final decree, occurring in Clauses (a) and (b) were not to be found in Clause (c) with the result that under Clauses (a) and (b) of Section 595, an appeal lay from any final decree, final judgment or final order but under Clause (c) no such limitation was placed. The Code of 1908 maintained this distinction in Section 109 but Article 133 of the Constitution has adopted a new method and has removed the distinction given in the three clauses of Section 109. C. P. C.

Under Article 133 of the Constitution, therefore, before leave could be granted to go up in appeal, the decision should be a judgment, decree or final order. Whatever may be the ground for the grant of such a certificate, it cannot be granted unless the order is a judgment, decree or a final order. To the same effect are the decisions of the Madras High Court reported in Raghavacharyulu v. Venkata Ramanuja Charyulu AIR 1954 Madras 406 (b) and the Patna High Court reported in Basudevauand v. Raghubir Saran Rastogi AIR 1954 Pat 241 (E).

In the case of Asrumati Debi v. Rupendra Dev 1953 SCR 1159 : (AIR 1953 SC 198) (F), their Lordships of the Supreme Court, in dealing with the 13 and 15 of the Letters Patent of the Calcutta High Court, held that an order for the transfer of a suit, made under Clause 13 of the Letters Patent of the Calcutta High Court was not a 'judgment' within the meaning of Clause 15 of the Letters Patent, and no appeal lay therefrom under the Letters Patent as it neither affected the merits of the controversy between the parties in the suit itself, nor terminated or disposed of the suit on any ground. After dealing with the cases of the various High Courts on the meaning of the word 'judgment'', their Lordships observed at page 1166 of (SCR); (AIR p. 200 of AIR) as follows :

'As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word 'judgment' as used in Clause 15 of Letters Patent. We have indicated what the essential features of a 'judgment' are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under Clause 13 of the Letters Patent does not satisfy the tests of a 'judgment' as formulated by either of these High Courts.

The question that requires determination in an application under Clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties, to the suit are agreed on this point there must arise a controversy between them which has to be determined by the Court. In the present case a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but 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. 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 as has been referred to by Couch C.J. in his observations quoted above'.

Reliance was placed on behalf of the petitioner on the case of the State of Orissa v. Madan Gopal, 1952 SCR 28 : (AIR 1952 SC 12) (G). Particular reference was made to the following. passage at page 34 (of SCR): (at p. 14. of AIR) of the Report:

'A preliminary objection was raised about the maintainability of the appeals on the ground that no final orders were passed on the petitions. That objection must fail in view of the fact that with these orders the petitions were disposed of finally and nothing further remained to be done in respect of the petitions. That fact that the operation of the order is limited to three months or a week after the filing of the intended suit does not prevent the order from being final'.

After consideration of these cases, we are of opinion that there is no force in the preliminary objection and we accordingly overrule it. In the petitions. leave was sought on two grounds: Firstly, it was contended by the petitioner that the valuation of the subject-matter of dispute was more than Rs. 20,000/-. We sent down an issue to the court below to determine the valuation of the subject-matter of the suits. The Assistant Collector has determined that issue and has found that the valuations of the plots involved in the petitions was Rs. 11,600/-.

An objection has been filed on behalf of the petitioner to the finding of the Assistant Collector but Mr. Khare does not seriously press that objection. Secondly, it was contended by the petitioner that this is a case, 'otherwise fit for leave to appeal to the Supreme Court'. The opposite parties have contended that, as the points raised in the petitions have been decided by this Court, they cannot be regarded as debatable points. It cannot be said that it is a fit case for appeal to the Supreme Court.

Two points were raised before the Bench deciding the Writ petitions and the petitioner proposes to challenge the decision of this Court before the Supreme Court on those two grounds. Firstly, it was contended that the Board of Revenue had no power to entertain a second application for review. That, in our opinion raises a question of general importance and it is covered by Clause (c) of Article 133 of the Constitution. Secondly, it was contended by the petitioner that Section 20, U. P. Zamindari Abolition and Land Reforms Act could not be given retrospective effect and consequently a review petition could not lie.

The matter relating to the retrospective operation of Section 20, U. P. Zamindari Abolition and Land Reforms Act was finally decided by a Full Bench of this Court and consequently at the time of arguments it was not pressed before us but Mr. Khare informs us that he proposes to raise the question of the validity of Section 20, U. P. Zamindari Abolition, and Land Reforms Act, before the Supreme Court and in our opinion this is also a point of general importance.

We, therefore, certify that this case is a fit one for appeal to the Supreme Court under Article 133(c) of the Constitution,

5. In the circumstances of the case, we makeno order as to costs.


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