P.C. Pandit, J.
1. This, order will dispose of two connected S. C. A.'s Nos. 146 and 169 of 1966 in which the same point is involved.
2. The question for decision is whether a petitioner, whose writ petition has been dismissed in limine and the value of the property involved therein is Rs. 20,000 or more, is entitled, as a matter of right, to get leave for filing an appeal to the Supreme Court. This would depend upon the interpretation to be placed on the Supreme Court decision in Ramesh v. Gendalal Motilal, AIR 1966 SC 1445. There one of the questions debated was whether an order dismissing a writ petition in limine was a 'judgment, decree or final order' as mentioned in Article 133 of the Constitution.
The argument of the counsel for the appellants in that case was that such an order was not a 'judgment, decree or final order' firstly, because it said nothing about the merits of the controversy and it could, therefore, not amount to the kind of determination which those words contemplated and, secondly, it did not of its own force affect the rights of the parties or finally put an end to the controversy. This is also the argument of Mr. M. Rule Sharma, who appeared in the present case on behalf of the Advocate General to whom notice had been issued by this Court. While repelling this contention, the Supreme Court observed thus :--
'The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it'.
That means that such an order was held to be a final order within the meaning of Article 133. If the Supreme Court had stopped there, then in all orders of such a nature in which the value of the property involved was Rs. 20,000 or more the aggrieved person could, as a matter of right, go up in appeal. The Court, however, goes on to say : --
'But it is not to be taken that any order will be a final order. There are orders and orders. The question will always arise what has the High Court decided and what is the effect of the order. It, for example, the High Court declines to interfere because all the remedies open under the law are not exhausted the order of the High Court may not possess that finality which the article contemplates. But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is notalways necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order is final or not will not depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be appeal able provided the other conditions are satisfied, otherwise not'.
According to these observations, all orders of this type would not be 'final orders'. In order to determine whether a particular order of this kind is final or not, the test laid down by the Court is that this question would not depend on whether the controversy between the parties was finally over, but whether the controversy raised before the High Court was finally over or not. In other words, the particular matter brought before this Court might not finally end the litigation between the parties, but if the precise controversy raised before this Court was finally over, then it would be deemed to be a 'final order' within the meaning of Article 133.
Prima facie, it appears that if a writ petition is dismissed by this Court, the precise controversy which is brought before it in that petition is finally over. I could think of only one contingency in which the dispute would not be finally decided and that is if the writ petition was dismissed on the ground that an alternative remedy was available to the petitioner. In that case the petitioner could first exhaust his other remedies and then come to this Court for the redress of that particular controversy for which he had come in the first instance, if the same had not been decided to his satisfaction by recourse to the alternative remedy. In such a case it could be said that the controversy was not finally decided by this Court in the earlier proceedings.
The Supreme Court has also given this very example for showing that if the High Court declined to interfere, because all the remedies open under the law are not exhausted by the petitioner, the order of the High Court in that case might not possess that finality which Article 133 contemplates. It means therefore, that all orders passed by the High Court dismissing the writ petition would be considered to be final unless it was stated in the said order that the petition was being rejected on the ground that an alternative remedy was available to the petitioner which he should avail of before coming to this Court.
3. Reliance was placed by Mr. Sharma on the following passage in the Supreme Court decision in Daryao v. State of U. P., AIR 1961 SC 1457:--
'.... if the High Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. If, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shownto he constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under Article 32'.
On the strength of this passage, learned counsel submitted that decision of the High Court in a writ petition must be on the merits, before it could be pleaded in support of the bar of res judicata. If, however, the High Court had refused to exercise its discretion on the ground of laches or on the plea that the petitioner had an efficacious alternative remedy available to him, then the decision of the High Court could not act as res judicata between the parties. According to the learned counsel the order of the High Court would be considered final only if the decision of the writ petition was on merits otherwise not. If the petition had been dismissed in limine, there was no decision on merits and hence that order could not be termed as a ' final order' within the meaning of Article 133.
4. There is no force in this contention. In the case of Daryao, AIR 1961 SC 1457, the Supreme Court was considering the question as to whether a person whose writ petition under Article 226 of the Constitution had been dismissed by the High Court, could move the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs. It was in that connection that the observations referred to above were made by the Court. The Supreme Court was not dealing with the point that arises in the instant case i.e., whether an order dismissing in limine a petition under Article 226 of the Constitution could be appealed against as a matter of right by the aggrieved party, if the subject matter of the controversy was Rs. 20,000 or more. Moreover, the wordings of Section 11 of the Code of Civil Procedure which deals with the principle of res judicata, are :--
'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court'.
They show that the matter must have been previously heard and finally decided between the parties, before it could act as res judicata in a subsequent suit. In Article 133 of the Constitution, on the other hand, the language employed is 'judgment, decree or final order in a civil proceeding of a High Court'. Under Section 11 of the Code of Civil Procedure, therefore the matter has to be tried, heard and finally decided between the parties. This obviously means that the decision must be on the merits before it can act as res judicata. This, however is not a prerequisite of a 'final order' as mention ed in Article 133 of the Constitution.
5. It may be mentioned that Mr. M. It. Sharma also referred to a decision of the FederalCourt in S. Kuppuswami Rao v. The King, AIR 1949 FC 1. Since this was not a case which was concerned with the exercise of extraordinary original civil jurisdiction of the High Court under Article 226 of the Constitution, as is the case in hand, it is not helpful for determining the point in issue.
6. Mr. Sharma also referred to a Bench decision of the Mysore High Court in Viswanathan v. S. Abdul Wajid, AIR 1960 Mys 261, where it was held :--
'The test for determining the finality of an order is whether the order has finally disposed of the rights of the parties. Where therefore the High Court while dismissing the writ petition in limine does not decide finally or otherwise any of the rights in dispute between the parties, the order passed by the Court rejecting the writ petition is not a final order within the meaning of Article 133(1) of the Constitution'.
This decision, in my opinion, has been impliedly overruled by the Supreme Court in the case of Ramesh, AIR 1966 SC 1445.
7. Some other decisions of the High Courts were also relied upon by Mr. Sharma. In view, however, of the fact that the matter has been decided by the Supreme Court in the case of Ramesh, AIR 1966 SC 1445, it is pointless to discuss them.
8. Applying the law laid down in the Supreme Court decision in Ramesh, AIR 1966 SC 1445, the petitioners in both these cases are, as a matter of right, entitled to the grant of certificates for going up in appeal to the Supreme Court. The value of the subject-matter in dispute in both the cases, according to the petitioners, is Rs. 20,000 or above. There are no counter affidavits. In both the cases, the writ petitions were dismissed in limine and it was not said they had been rejected on the ground that the petitioners had an efficacious alternative remedy available to them.
9. These petitions are, consequently, accepted but with no order as to costs.
10. In both the petitions, the orders granting stay of dispossession passed on 16-8-1966 and 27-9-1966 will be continued for another two months only, during which period the petitioners will obtain suitable orders from the Supreme Court in this behalf.
Mehar Singh, J.
11. I agree.