Skip to content


Bhagwan Dass and Co. Private Ltd., Dehradun Vs. the Income-tax Officer, Dehradun - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberS.C. Appeal No. 64 of 1958
Judge
Reported inAIR1958All800
ActsConstitution of India - Articles 133 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 109 and 110
AppellantBhagwan Dass and Co. Private Ltd., Dehradun
RespondentThe Income-tax Officer, Dehradun
Appellant AdvocateGopi Nath Kunzru, Adv.
Respondent AdvocateJagdish Swarup, Adv.
DispositionApplication dismissed
Excerpt:
.....and final order - article 133 and 226 of constitution of india - order of high court holding that proceedings under article 226 were not appropriate on the ground that alternate remedy before income tax appellate tribunal were pending - held, the order was not a judgment or a final order - application for leave to appeal in supreme court dismissed. - - article 132 of the constitution is, therefore, clearly not applicable. air1956all457 .it was held that in order to make an order a final order three conditions must be satisfied, namely :1. that it should not be an interlocutory order. this court was of the opinion that the question arising in this case could best be dealt with in that appeal and that proceedings under article 226 of the constitution were not appropriate because..........procedure. it was urged by learned counsel that the applicant was entitled to a certificate as of right under article 133(1)(a) of the constitution and section 109(b) read with section 110 of the code of civil procedure. in reply to this argument, learned counsel for the opposite party has urged that the order, in respect of which the certificate is sought, is not a judgment, decree or final order passed by this court and, consequently, neither article 133 of the constitution nor sections 109 and 110 of the code of civil procedure apply. the point, that has principally been argued before us in these circumstances, is whether the order passed by this court amounts to a judgment, decree or final order. there was another preliminary objection that this order was passed in proceedings which.....
Judgment:

V. Bhargava, J.

1. This is an application for a certificate under Articles 132 and 133 of the Constitution and Sections 109 and 110 of the Code of Civil Procedure in respect of an order passed by this Court on 28th February, 1958, on a petition for issue of writs under Article 226 of the Constitution. So far as Article 132 of the Constitution is concerned, learned counsel for the applicant has not advanced any arguments at all to show that the case, which came up before this Court, or the appeal which is sought to be taken before the Supreme Court raises any substantial question of law as to the interpretation of the Constitution. Article 132 of the Constitution is, therefore, clearly not applicable.

2. The application has been argued before us by learned counsel for the applicant under Article 133 of the Constitution and Sections 109 and 110 of the Code of Civil Procedure. It was urged by learned counsel that the applicant was entitled to a certificate as of right under Article 133(1)(a) of the Constitution and Section 109(b) read with Section 110 of the Code of Civil Procedure.

In reply to this argument, learned counsel for the opposite party has urged that the order, in respect of which the certificate is sought, is not a judgment, decree or final order passed by this Court and, consequently, neither Article 133 of the Constitution nor Sections 109 and 110 of the Code of Civil Procedure apply. The point, that has principally been argued before us in these circumstances, is whether the order passed by this Court amounts to a judgment, decree or final order.

There was another preliminary objection that this order was passed in proceedings which could not be held to be civil proceedings and this was an additional ground on account of which no certificate could be granted under Article 133 of the Constitution or Sections 109 and 110 of the Code of Civil Procedure but, because of the view we are taking on the first point, we have not considered it necessary to enter into this second point.

3. It has not been contended before us that the order, in respect of which the certificate is sought, is or can be a decree. Reliance could only be placed on the word 'judgment' and the expression 'final order'. What is a 'judgment' was explained by a Bench of this Court in Vishnu Pratap v. Smt. Revati Devi : AIR1953All647 , where it was held :

'A judgment means an adjudication which conclusively determines the rights of the parties and not a mere interlocutory order during the pendency of a case. Every order passed by a single Judge in the exercise of his civil jurisdiction is not a judgment. What is or what is not a judgment will have to be decided in each case with reference to its effect on the rights of the parties. Even if it disposes of another point in dispute between the parties to a suit which has been raised by a separate application and which may be ancillary to the suit itself, it is not necessarily a judgment.'

The other question as to what constitutes a 'final order' was considered by a Full Bench of this Court in Mohammad Mahmood Hasan Khan v. Govt. of U. P. : AIR1956All457 . It was held that

'In order to make an order a final order three conditions must be satisfied, namely :

1. that it should not be an interlocutory order.

2. that even though it is an order which disposes of the proceedings before a Court finally it should not be an order which leaves the original proceeding in the Court below alive, and

3. that there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties.'

A similar principle was laid down by the Federal Court in Kuppuswami Rao v. The King . It was held that to be a final order it must be an order which finally determines the points in dispute and brings the case to an end. Very recently, the Madras High Court also interpreted the expression 'final order' in Dhanalakshmi Animal v. The Income-tax Officer, : (1957)2MLJ567 .

It was held that an order passed in proceedings under Article 226 of the Constitution will be a final order within the meaning of Article 133 of the Constitution if it finally disposes of the rights of par-ties. Where an order does not determine the right of a petitioner to the property claimed, but leaves it open to be agitated in appropriate proceedings, the order cannot be said to amount to a final order. A Full Bench of the Punjab High Count in Kapur Singh v. Union of India was also called upon to answer the question whether an order passed in proceedings under Article 226 of the Constitution did or did not amount to a final order. It was held that

'in every case the Court has to see whether the rights of the parties are finally determined by a decision so that the answer to the first question referred is that the mere fact that the Court refuses to issue a writ of direction under Article 226 does not take it out of the definition of the words --'judgment, decree or final order' but it will depend upon the facts, circumstances and the nature of decision in each case'.

It appears that a slightly different view was expressed by a Division Bench of the Patna High Court in Alien Berry and Co. Ltd. v. Income-tax Officer, Patna 0044/1956 : [1955]28ITR70(Patna) . In that case also petitions had been moved under Articles 226 and 227 of the Constitution against orders of assessment mainly on the grounds that the orders were without jurisdiction and were vitiated by errors apparent on the face of the record.

Those writ petitions were dismissed summarily by a Bench of the Patna High Court and the certificate for leave to appeal to the Supreme Court was sought against that order of dismissal. It was held by the Patna High Court that the orders of summary dismissal of writ applications amounted to final orders though the certificates were refused on the other ground that those orders had not been passed in any civil proceedings. These are the various cases in which the words 'final order' used in Article 133 of the Constitution or Sections 109 and 110 of the Code of Civil Procedure have been interpreted.

4. In our opinion, we are, in this state of law, bound to follow the view expressed by the Full Bench of this Court in the case of : AIR1956All457 cited above. Further, it is also clear that the consensus of opinion supports that view. The decision of the Federal Court cited above lays down the same principle and this has also been laid down by the Full Benches of the Madras High Court and the Punjab High Court. There is only the solitary view of the Patna High Court which is very likely against it.

We also entirely agree with the reasons which led to the decisions given by the Full Bench of this Court and which have been supported by the decisions of other Courts as mentioned above. The principle laid down in these cases must, therefore, be followed by us and the principle is that a certificate under Article 133 of the Constitution or Section 109(b) read with Section 110 of the Code of Civil Procedure can only be granted (1) if we treat it as a judgment in case it conclusively determines the rights of the parties and is not a mere interlocutory order during the pendency of a case, and (2) if we treat it as a final order, in case it satisfies the three tests laid down by the Full Bench of this Court in : AIR1956All457 viz., that it should notbe an interlocutory order, that even though it isan order which disposes of the proceedings before a court finally, it is not an order which leaves the original proceeding in the Court below alive, and that there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties.

Consequently, no certificate can be granted by this Court unless besides other ingredients one which has been also laid down when interpreting the words 'judgment' and 'final order' is present, viz., that there is a final determination of the rights of the parties or the order must of its own force affect the rights of the parties. This is the test that has to be applied in dealing with the present application before us.

5. Our order, in respect of which the certificate is sought, did not at all deal with the question whether the orders of the subordinate authorities, against which writs were sought, were correct or incorrect. The order neither vacated those orders nor affirmed them. What this Court did was to hold that the proceedings taken by moving this Court to exercise its powers under Article 226 of the Constitution were not appropriate proceedings for the remedy which the applicant was seeking. The applicant had already filed a second appeal against the order of assessment which was impugned and that second appeal was pending before the Income-tax Appellate Tribunal. This Court was of the opinion that the question arising in this case could best be dealt with in that appeal and that proceedings under Article 226 of the Constitution were not appropriate because there were mixed questions of law and fact to be considered which could not be done in these proceedings.

It was also held that the applicant had that alternative remedy of continuing the proceedings before the Income-tax Appellate Tribunal which were already pending, and no attempt at all had been made on behalf of the applicant to explain why he was not content with that ordinary remedy provided by law or to show that the other remedy was not specific, convenient and speedy. It will thus be seen that by the order of this Court, no rights of the applicant were at all decided.

The order, which was impugned, was left untouched. It was neither set aside nor affirmed. It was left to the applicant to continue his remedy against that order in the proceedings which he had already initiated in respect of it before the Income-tax Appellate Tribunal, so that the rights which were decided by that order, continued to remain within the jurisdiction of the Income-tax Appellate Tribunal to adjudicate upon.

6. It was contended by learned counsel for the applicant in the alternative that the order, which was passed by this Court, at least did decide the right of the applicant to obtain a writ from this Court under Article 226 of the Constitution. Even this argument cannot be accepted because it has been held by a Full Bench of this Court in Asiatic Engineering Co. v. Achhru Ram, AIR 1951 MI 746 (G), that

'there can be no doubt that Article 226 of the Constitution makes the issue of directions, order or writs discretionary and it cannot be urged that any party has a right to any form of order as amatter of course; the discretion is a judicial discretion to be exercised according to judicial principles.'

It is to be noticed that Article 226 of the Constitution only grants power to the High Courts without containing any specific provision giving any one a right to invoke that power. This provision is in contrast with the provision contained in Article 32 of the Constitution, where not only is the power granted to the Supreme Court of issuing directions, orders or writs but there is also a specific provision guaranteeing the right to move the Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution.

When the right to have the Supreme Court by appropriate proceedings is guaranteed, it necessarily implies that the person moving the Supreme Court has a right to obtain a decision on the application made by him, so that the exercise of the power conferred on the Supreme Court to issue directions, orders or writs is not entirely discretionary.

Under Article 226 of the Constitution no such right to move the High Court has been granted and that is why the power of issuing directions, orders or writs under Article 226 of the Constitution vested in the High Courts is a discretionary power, though, as has been held by the Full Bench of this Court in AIR 1551 All 746 (G), that power has to be exercised judicially and on considerations which would amount to exercise of judicial discretion.

In this case, therefore, when this Court refused to exercise the power on the application of the Applicant, the Court did not, by dismissing that application, adjudicate upon any right of the applicant to obtain a writ from this Court. Learned counsel referred us to a decision of a Division Bench of this Court in the Rent Control and Eviction Officer, Etah v. Asharfi Lal : AIR1958All153 , in support of his contention that a person has a right to move a High Court for relief under Article 226 of the Constitution. What was decided by this Court was to the following effect:

'Rule 4 confers upon the landlord the right to nominate a tenant and if, as in the case before us, that right is exercised, then in our opinion the nominee had a right to have an allotment order issued in his favour unless the District Magistrate makes an immediate allotment, for reasons stated, to another. If the District Magistrate acts in contravention of the Rule the allottee is an aggrieved person and is entitled to move this Court for relief under Article 226.'

In our opinion, this view expressed by this Court does not amount to laying down that any person has a legal right of claiming relief under Article 226 of the Constitution. Under the Constitution, discretion was vested in the High Court to exercise its powers under Article 226 of the Constitution and the procedure for exercising the powers was laid down in the Rules of Court. The Rules of Court required that an application should be made to this Court for exercising that discretionary power only by persons who were interested.

It was in this sense that the Court held that the petitioner in that case was entitled to movethe Court for relief under Article 226 of the Constitution. What the Court did was merely to say that, being a person interested, he was the appropriate person for moving the Court to exercise its discretion under Article 226 of the Constitution and not to lay down that such a person had any legal right to move the Court and to claim issue of a. writ, direction or order under Article 226 of the Constitution, as of right, provided the merits of his claim justified it. In the circumstances, this decision does not go against the view which was taken by the Full Bench of this Court in the case of : AIR1951All746 , cited above.

7. In these circumstances, we are of the view that the order, against which this application was moved, was not a judgment or a final order as it did not decide any right of the applicant in this Court, nor did it affect any right of the applicant which might have been the subject-matter of dispute before other authorities or tribunals, in respect of which the applicant has been left to seek his remedy in accordance with the appropriate procedure provided by law. This application cannot, therefore, be granted and is dismissed with costs which we fix at Rs. 150/-.

8. The interim stay order passed by us is vacated.


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