1. These two applications (S. C. As Nos. 9 and to of 1966) for leave to appeal to the Supreme Court under Article 133(1) of the Constitution and under Sections 109 and 110read with Order 45, Rules 2 and 3, Code of Civil Procedure, may be disposed of by one order because they arise out of the same order. Both of them are directed against the order made by this Bench on 1-10-1965 declining to exercise our jurisdiction under Article 226 of the Constitution and directing the petitioner to seek redress of his grievances from the Appellate Authorities under the Indian Income-tax Act.
We took care to point out that we were not expressing any opinion on the merits of the arguments challenging the impugned order of the income-tax authorities. We adopted this course on the express request made by the learned counsel for the petitioner appearing on that occasion. I may reproduce what we said in the order:
'On behalf of the petitioner, an express request has been made that in case this Court is inclined not to go into the merits of the controversy and prefers to direct the petitioner to seek redress of grievances from the Appellate Authorities under the statute, then we may not express any opinion on the merits of the arguments addressed at the bar in support of the challenge to the notice or to the assessment order Considering this request to be fail and reasonable, we refrain from expressing any opinion on the merits of the challenge and nothing said in this order should be construed as a considered expression of our opinion '
2. On behalf of the respondents, their learned counsel has raised a preliminary objection that there is no judgment, decree or final order made by this Court in the present case and therefore, no application for leave to appeal to the Supreme Court lies. In support of this submission, reliance has been placed on Bhagwan Dass and Co. v. Income-tax Officer, AIR 1958 All 800. The principle of law adopted by the Bench in that case 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 (i) if the impugned order conclusively determines the rights of the parties and is not a mere interlocutory order during the pendency of a case and (ii) if the order is treated as a final order satisfying three tests namely, it disposes of the proceedings before the Court finally, it does not leave the original proceedings in the Court below alive and 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. After approving this principle, the Bench proceeded to decline the certificate in the following words:
'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 Courtto 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'. A little lower down the Court continued:
'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.'
Ultimately, the impugned order was held neither to amount to a judgment nor to a final order and the application for grant of the requisite certificate was dismissed. Reliance has next been placed on Mohammad Amin Brothers Ltd. v. Dominion of India, 1949 FCR 842 = (AIR 1950 FC 77). There also an appeal against an interlocutory order was held not to be maintainable. Mukherjee J. (as he then was) speaking for the Court, stated the legal position thus:
'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 case, decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in S. Kuppuswami Rao v. The King 1947 FCR 180 = (AIR 1949 FC 1) and the law on point, so far as this Court is concerned, seems to be well settled In full agreement with the decisions of the Judicial Committee in Ram Chand Manjimal v Goverdhandas Vishandas, 47 Ind App 124 = (AIR 1920 PC 86) and Abdul Rahman v D. K. Cassim and Sons, 60 Ind App 76 = (AIR 1933 PC 58) 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 60 Ind App 76 = (AIR 1933 PC 58) the finality must be a finality in relation to the suit. If after the order the suit is till 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 to by itself not material. If the decision on an issue nuts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has gotto be tried in the ordinary way, no finality could attach to the order.'
3. On behalf of the petitioner, his learned counsel Shri S. K. Tuli has placed his reliance exclusively on a recent judgment of the Supreme Court reported as Ramesh v. G. M. Patni. 1966 Cur LJ 152 = (AIR 1966 SC 1445).
4. Before dealing with the merits of the respective submissions by the counsel for either side, I consider it necessary to read Article 133(1) of the Constitution:--133 'Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters--(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.'
A plain reading of this Article shows that an appeal thereunder shall lie to the Supreme Court from a judgment, decree or final order. Undoubtedly, the impugned order is not a decree. The word 'judgment' as used in this Article should also, in my opinion be taken as used in the same sense as the word decree' in the Code of Civil Procedure and as meaning the declaration of final determination of the rights of the parties in the matter brought before the Court. The question whether or not it is a final order also seems to me to be covered by the decision of the Federal Court in the case of Mohammad Amin. 1949 FCR 842 = (AIR 1950 FC 77).
The order is, in my view, final if it amounts to a final decision relating to the rights of the parties in dispute in a civil proceeding If after the order, the civil proceedings still remain to be tried and the rights in dispute between the parties have yet to be determined, the order is not a final order within the meaning of this Article. Every decision given by a Court, as I understand the legal position, cannot be said to be a judgment, decree or final order within thecontemplation of this Article. The decision must, in order to fall within the purview of this Article, finally determine the rights of the parties in controversy. Does the impugned order satisfy this condition? In my opinion, quite clearly, it does not, as is plain from the concluding passage reproduced earlier.
I am fully alive to the fact that writ proceedings may not appropriately be equated with appeals or revisions which, as observed by the Supreme Court in the case of Ramesh, 1966 Cur LJ 152= (AIR 1966 SC 1445) are a continuation of the original suit or proceeding, whereas a petition to the High Court under Article 226 of the Constitution is a proceeding quite independent of the original controversy. But in the present case, this Court has declined to interfere because all the remedies open under the statute in question have not been exhausted. Such an order can scarcely be considered to be clothed with the finality contemplated by Article 133.
5. The contention that as held by the upreme Court in the case of Ramesh, 1966 Cur LJ 152= (AIR 1966 SC 1445) the petitioner is entitled as of right to go up on appeal to the Supreme Court because the amount or value of the subject-matter of the dispute in the High Court and still in dispute on appeal to the Supreme Court is not less than Rs. 20,000 is unacceptable because the question of valuation would arise only after the impugned order is held to be a 'judgment, decree or final order' as contemplated by Article 133. If the impugned order does not answer the description of 'judgment decree or final order', then valuation is wholly immaterial. It is instructive to reproduce some observations of Hidayatullah, J who had prepared the judgment of the Court in Ramesh's case, 1966 Cur LJ 152 = (AIR 1966 SC 1445):
'We are concerned here with the exercise of extraordinary original civil jurisdiction under Article 226. Under that jurisdiction, the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or tribunal or any authority within the High Court's jurisdiction. A petition to the High Court involving this jurisdiction is proceeding quite independent of the original controversy The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of 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. Butit 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. If, 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.' The principle enunciated in this passage, as I read it also goes against the petitioner on the plea of right of appeal on the basis of valuation -- even if the absence of affidavit is ignored, which we are not inclined to. It may be pointed out that there is no question in the present case of the statute being ultra vires and, therefore, no question of the jurisdiction of the taxing authorities to deal with the points raised
6. In view of the foregoing discussion, these applications fail and are hereby dismissed but with no costs.