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L. Man Mohan Das and ors. Vs. Uinited Provinces and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All367
AppellantL. Man Mohan Das and ors.
RespondentUinited Provinces and ors.
Excerpt:
- - 10,000. thus two of the conditions laid down by clause 30 are satisfied......council (no. 1) (1903) 1 k.b. 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 in the ordinary way.5. again in abdul rahman v. d.k. cassim & sons , their lordships of the privy council are reported to have observed as follows: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 under section 109(a) of the code.... the effect of the order from which it is here sought to appeal was not to dispose of finally the rights of the parties. it no doubt decided an important and even.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an application for leave to appeal to His Majesty in Council against an order of this Court dated 5th May 1941, rejecting an application dated 21st January 1941. The application just mentioned was filed by L. Manmohan Das and purported to be under Section 151, and Order 47, Civil P.C., and under Section 202, Companies Act, and the prayers contained in the application were as follows: 1. That this Court

be pleased to direct the U.P. Government to carry out the undertaking given by it in regard to the continuance of electric license and the purchase of the undertaking of the Lower Ganges and Jumna Electricity Distributing Company Ltd. (in liquidation) or alternatively to give the directors and the trustees for the debenture-holders an opportunity to oppose the application for winding up by setting aside the order for winding up passed by this Court on 19th March 1937 and 7th April 1937.

2. That this Court

be further pleased to restrain the Official Liquidators of the Lower Ganges Jumna Electricity Distributing Company Ltd., Allahabad (in liquidation) from delivering the possession and to restrain the U.P. Government from giving effect to the revocation of the license and taking possession of the properties and the undertaking of the Lower Ganges Jumna Electricity Distributing Company Ltd. (in liquidation) pending the disposal of this application.

2. At the time of the hearing of the application the counsel for L. Manmohan Das withdrew the first prayer mentioned above reserving the right to move another application for the same relief if and when advised. The result was that this Court had only to deal with the second prayer mentioned above, and it refused to grant that prayer by its order dated 5th May 1941. It is against this order, as already stated, that the petitioners propose to file an appeal to His Majesty in Council. In the application for leave to appeal the relevant facts are stated and it is alleged in para. 68 of the application

that the case fulfils the requirements of Section 109 (b), Civil P.C. and the subject-matter in dispute is much above Rs. 10,000 amounting to several lacs although it is not capable of actual valuation.

3. A preliminary objection to the maintainability of the application was raised by Sir Tej Bahadur Sapru and he argued that as the order sought to be appealed against was not passed by this Court 'in the exercise of original civil jurisdiction,' the application was incompetent. In support of his objection he invited our attention to various clauses of the Letters Patent and pointed out that this Court is not vested with 'original civil jurisdiction' within the meaning of Clause (b) of Section 109 and therefore the order in question could not be deemed to have been passed by this Court 'in the exercise of original civil jurisdiction'. The learned Counsel for the applicants then prayed that the application be treated as one under Clause 30, Letters Patent, and we agreed to do so. The relevant portion of Clause 30, Letters Patent, is as follows:

And we do further ordain that any person or persons may appeal to Us, Our heirs and successors in Our or Their Privy Council...from any final judgment decree or order...made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court from which an appeal shall not lie to the said High Court under the provision contained in Clause 10 of these presents provided in either case that the sum or matter at issue is of the amount or value of not less than ten thousand rupees....

4. The order in question was passed by a Bench of this Court in a company matter and no appeal against that order lies to this Court under Clause 10, Letters Patent. Further the value of the matter in issue in the proposed appeal is not less than Rs. 10,000. Thus two of the conditions laid down by Clause 30 are satisfied. The question however remains whether the order sought to be appealed against is a final order within the meaning of Clause 30. In our judgment it is not. The second prayer contained in the application dated 21st January 1941 was in fact and in substance a prayer for the issue of a temporary injunction restraining the official liquidators from delivering possession of the undertaking to the U.P. Government and further for the issue of a temporary injunction restraining the U.P. Government from revoking the license granted under the Electricity Act to Messrs. P.L. Jaitly & Co. and from taking possession of the undertaking of the Lower Ganges Jumna Electricity Distributing Company Ltd. (in liquidation) pending the decision of the application. In short, this Court was requested by the application to issue certain temporary injunctions and this request was refused by the Court. The answer to the question as to what is a final order within the meaning of Clause 30, Letters Patent, is attended with considerable difficulty. It is however clear that the words ' final order ' are used in contradistinction to the words ' interlocutory order'. It would be noted that the words 'final order' also find a place in Clause (a) and (b) of Section 109, and in Goverdhandas Bishandas Ratanchand ('20) 7 A.I.R. 1920 A.I.R. 1920 P.C. 86, their Lordships while deciding the question whether an order refusing stay of a suit under Section 19, Arbitration Act, was a final order observed as follows:

The question as to what is a final order was considered by the Court of Appeal in Salaman v. Warner (1891) 1 Q.B. 734, and that decision was followed in the same Court in Bozson v. Altrincham Urban District Council (No. 1) (1903) 1 K.B. 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 in the ordinary way.

5. Again in Abdul Rahman v. D.K. Cassim & Sons , their Lordships of the Privy Council are reported to have observed as follows:

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 under Section 109(a) of the Code.... The effect of the order from which it is here sought to appeal was not to dispose of finally the rights of the parties. It no doubt decided an important and even a vital issue in the case but it left the suit alive and provided for its trial in the ordinary way....

6. It may therefore be safely laid down that the test to decide whether an order is final is to see whether the rights of the parties have been finally and once for all decided by it. If the effect of the order is not to adjudicate finally the rights of the parties the order cannot be characterized as final. In one sense every order passed by a Court is final so far as that Court is concerned, but the finality of the order contemplated by Clause 30, Letters Patent, is in relation to the rights of the parties and not with reference to the Court passing the same. In other words, if the effect of the order is to bar a party from seeking redress with respect to the alleged infringement of his right by a proceeding according to law the order is final, otherwise it is not. Now by its order dated 5th May 1941, all that this Court did was to refuse to issue certain temporary injunctions which it was invited to issue. In dealing with the matter before it, it no doubt expressed an opinion on the propriety or otherwise of the steps taken by the U.P. Government to terminate the license, but that expression of opinion did not finally adjudicate upon the rights of the parties. The order was passed by this Court on a miscellaneous application filed in a company case and the order does not bar the applicants before us from enforcing their alleged right by a suit in the ordinary way. Temporary injunctions are granted or refused by a Court in the exercise of the powers vested in it by Order 39, Civil P.C. and the orders passed by a Court under Order 39 can never bar a party from having resort to procedure prescribed by law for the redress of the infringement of an alleged right. It is maintained by the present applicants that the U.P. Government was not within its right in terminating the license and in seeking to take possession of the undertaking. If the applicants are right in this assertion they can resort to such procedure as is sanctioned by law for the enforcement of their alleged right. It follows that there has been no final adjudication of the rights of the parties by the order dated 5th May 1941. That order is therefore not final and the proposed appeal is as such incompetent. We accordingly dismiss the application with costs.


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