1. This is an application for a certificate under Article 133(1)(a) at the Constitution that the amount of value of the subject matter of dispute in the Court of first instance and still in dispute on appeal is not less than Rs. 20,000/-; and also under Article 133(1)(c) of the Constitution that the case is a fit one for appeal to the Supreme Court.
2. The facts which are relevant for the purposes of the present application are as follows:
3. One Krishnadas Nandy was a monthly tenant under the plaintiff-respondent No. 1 at a monthly rent of Rs. 450/- payable according to English Calendar in respect of premises No. 33 Rowland Road. On June 23, 1955 the plaintiff-respondent No. 1 instituted a suit for ejectment of Krishnadas Nandy alleging that he reasonably required the premises for his own occupation. In the plaint the suit was valued at Rs. 6,400/-, Rs. 5,400/- for ejectment and Rs. 1,000/- for mesne profits. On August 10 1956, the suit ended in a decree in favour of the plaintiff-respondent No. 1. On September 11, 1956 the defendant Krishnadas Nandy filed , an appeal against that decree to this Court and that appeal was registered as : AIR1959Cal181 , Krishna Das Nandy v. Bidhan Chandra Roy. On January 28, 1958, a Division Bench of this Court remanded the suit to the trial Court for deciding the question whether the requirement of the plain-lift could be satisfied by a partial eviction of the defendant. On April 21, 1958, the original tenant Krishnadus Nandy died and his widow, three sons and five daughters were substituted in his place. On November 14, 1958, the suit was again decreed in full by the trial Court and against that decree four of the heirs namely, the three sons and the widow of the original tenant filed an appeal to this Court which was registered as : AIR1960Cal67 , Mukunda Das Nandy v. Bidhan Chandra Roy. This appeal was presented on December 24, 1958. In the meantime the Bengal, Agra and Assam Civil Courts Act was amended by the State Legislature of West Bengal by West Bengal Act XVI of 1957 and this Act came into force on January 1, 1958. By Section 3 of this Act the pecuniary limit of the appellate jurisdiction of the District Judge was raised from Rs. 5,000/- to 10,000/-. Section 4 of the Act provides that nothing in the Act shall apply to or affect any appeal from any decree or order passed before the commencement of the Act. By a judgment dated the 1st of July, 1959, a Division Bench of this Court held that since the valuation of the appeal was Rs. 6,400/- only and since the decree in the present case was passed after the coming into operation of West Bengal Act XVI of 1957, this Court had no jurisdiction to entertain the appeal. The concluding portion of the judgment of the Division Bench runs as follows:
'We accordingly dispose of this appeal by holding that it lies to the District Judge and not to this Court and directing return of the memorandum of appeal to the learned filing advocate for presentation to the proper Court and for taking other necessary steps..........'
It is against this order that the petitioners, who are the three sons and the widow of the deceased tenant, intend to take a further appeal to the Supreme Court. In the application for certificate of fitness the five daughters of the deceased tenant were impleaded as respondent Nos. 2 to 6. On August 19, 1959, the applicants for leave to appeal to the Supreme Court stated that they didnot want to prosecute the application as against respondent Nos. 2 to 6 with the result that the application was dismissed as against those respondents and was allowed to proceed against respondent No. 1 only.
4. At the hearing of the application Dr. Gupta appearing for the applicants stated that he did not want to press his claim for a certificate under Article 133(1)(a) but that he would press his claim under Article 133(1)(c) only. As a result of this statement it is not necessary for me to enquire into the question whether the amount or value of the subject matter of dispute in the Court of first instance and still in dispute on appeal was and is not less than Rs. 20,000/-. The only questions which require our consideration are (a) whether the order against which the applicants propose to take a further appeal to the Supreme Court is a 'judgment, decree or final order' within the meaning of Article 133 of the Constitution and (b) whether the case is a fit one for appeal to the Supreme Court within the meaning of Clause (c) of Article 133. On the second question again it is not disputed by the learned Advocate General appearing for respondent No. 1 that the point derided by the Division Bench with regard to the interpretation of Section 4 of West Bengal Act XVI of 1957 is of considerable public importance. If therefore the order of the Division Bench be a judgment, decree or final order within the meaning of Article 133(1), we shall have to certify that the case is a fit one for further appeal to the Supreme Court.
5. The crucial question therefore is whether the order of this Court can be said to be a judgment, decree or final order. The order is certainly not a decree. Dr. Gupta, however, contends that it is a judgment; and according to him the word judgment in Article 133 must be given the same meaning as it bears in Clause 15 of the Letters Patent and he further contends that since under Clause 15 of the Letters Patent an order determining the forum of a suit has been held to be a judgment so also an order determining the forum of appeal must be held to be a judgment. This point, now-ever, is no longer open for argument. It is well-known that under Clause 15 of the Letters Patent any decision which affects the merits of the question between the parties by determining some right or liability is a judgment. That judgment may be an interlocutory judgment, for example, an order appointing or refusing to appoint a receiver or an order granting or refusing to grant a temporary injunction. But the word judgment as used in Article 133 of the Constitution cannot include an interlocutory order. The expression 'judgment, decree or final order' which occurs in Article 133 of the Constitution also occurred in Section 205 of the Government of India Act of 1935. The word judgment as occurring in Section 205 of the Government of India Act was interpreted by the Federal Court in the case of Kuppuswami Rao v. The King , where the appeal to the Federal Court was directed against an order of the High Court holding that the consent of the Government under Section 270(1) of the Government of India Act, 1935 or the sanction of the Local Government under Section 197 of the Criminal Procedure Code was not necessary for a prosecution then pending before a Magistrate. Before the Federal Court a preliminary objection was taken to the maintainability of the appeal on the ground that the order of the High Court then under appeal was not a judgment, decree or final order within the moaning of Section 205 of the Government of India Act of 1935. Kama, C. J. pointed out that the order of the High Court was not a judgment as it was only an interlocutory order made on a preliminary objection and he further pointed out that the word judgment as occurring in Section 205 of the Government of India Act has the same meaning as it has in England, namely, the determination of the rights of the parties in the matter brought before the Court. The point was again considered by the Federal Court in the case of Mohammed Amin Brothers Ltd. v. Dominion of India, 1949 FCR 842: (AIR 1950 SC 77), where the order under appeal was one by which this Court in the exercise of its appellate jurisdiction set aside the winding up order passed by a Judge on the Original Side and directed the application for winding up to be considered after the decision of certain Income-tax appeals filed by the appellant company. The question that was raised before the Federal Court was whether the order of this Court against which the appeal was preferred to the Federal Court was a judgment within the meaning of Section 205 of the Government of India Act, 1935 and this question was answered in the negative and it was pointed out that the word judgment has the same meaning as it has in English Courts that is the declaration and final determination of the rights of the parties. According to the decisions in Kuppuswami's case as well as in Mohammed Amin's case (AIR 1950 FC 77) the word judgment in Section 205 of the Government of India Act, 1935 cannot include an interlocutory judgment or order. All these decisions were elaborately reviewed and the meaning of the expression judgment, decree and final order as occurring in Article 133 of the Constitution was considered in great detail in the case of West Jamuria Coal Company v. Bholanath Roy, 58 Cal WN 51; : AIR1954Cal424 and it was held that the word judgment did not apply to any interlocutory order. This argument of Dr. Gupta that the order of this Court dated July 1, 1959, is a judgment within the meaning of Article 133 of the Constitution must accordingly be overruled.
6. The next point which is really the most important point in the case is whether the order of this Court is a 'final order'. It is argued that the order is final in the sense that it has finally terminated the proceeding in this Court and any further continuation of the proceeding does not depend on the order passed by this Court but on some further act to be done by the petitioners. In other words the order of this Court does not of its own force continue the proceeding as in the case of an order of remand but the continuation is contingent on something being done by the intending appellants. It is further argued that if the appeal is now filed in the Court of the District Judge in pursuance of the order of this Court it will be a new appeal wholly unconnected with the appeal that was presented in this Court and consequently the order of this Court must be treated as a final order. I am, however, unable to accept any of these contentions as sound for the following reasons:
7. In the first place, the order of this Court leaves open the possibility of the memorandum of appeal being presented to the Court of the District Judge; and if the memorandum is so presented to the proper Court it cannot, in my opinion, be said to start a new proceeding. The same memorandum with the same court-fee and the same grounds of appeal will be presented in the Court of District Judge with the only alteration that the name of the Court will have to be changed. It is true, that on the date on which the order was passed by this Court the period of limitation for filing an appeal in the Court of the District Judge had already expired; but that fact does, not make any difference in the situation because In cases of this description the memorandum of appeal is usually accompanied by an application for extension of time under Sections 5 and 14 of the Indian Limitation Act which is ordinarily granted by the Court in the absence of exceptional circumstances. I cannot therefore hold that the appeal which it is open to the petitioners to file in the Court of District Judge will start an independent proceeding, wholly unconnected with the appeal that was filed in this Court. In the second place, I cannot hold that the decision of this Court finally disposed of the rights of the parties because it appears from the judgment that the learned Judges of the Division Bench expressly refused to pronounce any opinion on the merits of the case. I quote below some of the observations made by the learned Judges of the Division Bench on this, point:
(a) 'In fairness to the parties and in fairness to us as also to the superior and inferior Courts to which the matter may travel hereafter and above all in the interest of fair play and justice we have deemed it necessary not to take up the appeal on the merits.'
(b) 'If we are right on the point of jurisdiction any expression of opinion on the merits of the said disputes from this Court may seriously embarrass the learned District Judge in the determination of the appeal and that may produce the gravest injustice
(c) 'After having held that we have no jurisdiction to entertain and hear the appeal and that the same lies to the District Judge, we do not think that we can with consistency and propriety hear it on the merits'.
The question therefore arises whether the decision of this Court as to its jurisdiction to entertain the appeal without any decision on the merits of the controversy between the parties is a final order within the meaning of Article 133. Upon the authorities, I have no hesitation in answering this question in the negative. The test of finality has been laic? down in various decisions by the Judicial Committee and also by the Federal Court of our country. In the case of Firm Ramchand Manjimal v. Firm Govardhandas Vishandas Ratanchand, 47 Ind App 124: (AIR 1920 PC 86) where the Judicial Committee was considering the question whether an order refusing to stay a suit under Section 19 of the Indian Arbitration Act was a final order within the meaning of Section 109, Civil Procedure Code, Lord Cave held that the order was not final because it did not finally dispose of the rights of the parties. In this case Lord Cave followed the decision of the Court of Appeal in Salaman v. Warner (1891) 1 Q. B. 734, where it was held that in order to be a final order the order must be on a point which decided either way would finally terminate the matter before the Court. The principle laid down by Lord Cave in Firm Ramchand's case 47 Ind App 124: (AIR 1920 PC 86) was followed by Sir George Lowndes in the case of Abdul Rahaman v. D. K. Cassim and Sons , where the Privy Council was dealing with an order of Remand. In the case of , the Federal Court of India followed the test laid down by the Court of Appeal in the case of (1891) 1 QB 734 and accepted by the Privy Council in the case of . Finally in Amin Ahmed's case, (1949) FCR 842: (AIR 1950 FC 77), the Federal Court followed the earlier decisions. . Upon these authorities I have no doubt that a decision cannot be said to be a final order within themeaning of Article 133 of the Constitution unless it finally disposes of the rights of the parties on the merits of the case; and as in the present case this Court expressly refused to decide any question on merits and left it open for determination by the Court of the District Judge the order passed by this Court cannot, in my opinion, be said to be a final order.
8. To meet these difficulties Dr. Gupta advanced an extreme argument to the effect that theorder of this Court amounts to an order of dismissal of the appeal and is therefore a final order. His argument is that the Appellate Court has no power to return a memorandum of appeal and the order of return made by this Court by its order dated July 1, 1959, is without jurisdiction and, in law has the effect of an order of dismissal of the appeal. This argument is, in my opinion, untenable. It has been held in several decisions that the Appellate Court has the power to return a memorandum of appeal for presentation to the proper Court under Section 107(2) of the Civil Procedure Code. But apart from this, a Division Bench of this Court has directed the return of the memorandum of appeal and it is not open to us to hold that that order is without jurisdiction and has the legal effect of dismissal of the appeal.
9. We are told that the petitioners have notpresented the memorandum of appeal in the Court of the District Judge and consequently the order of this Court has become final. In order to determine the question of finality it is not open to us to take into account what has or has not been done by the petitioners. We are only to look at the order that has been passed by this Court and see whether that order finally disposes of the rights of the parties or leaves open the possibility of their determination by a Court of competent jurisdiction. From what I have already said it is quite clear that under the order of this Court the petitioners were at liberty to present the memorandum of appeal in the Court of the District. Judge for a determination of their rights on the merits of the dispute and consequently I cannot hold that the order of this Court is a final order.
10. I may conclude the discussion on this part of the case by quoting the observations of Kania C. J. in the case of Kuppuswami Rao which runs as follows :
'The order is clearly not a decree. It is not also a judgment as it is only an interlocutory order madeon a preliminary objection .......... It is also nota final order as the order is not on a point which decided either way would terminate the matter before the Court finally.'
The next point argued by Dr. Gupta is that even if the order does not fulfil the requirements of Article 133 of the Constitution we are free to grant a certificate under Article 135 and he has relied upon the decision of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Chowdhry, : 1SCR488 . In that case the Supreme Court was considering the question whether the valuation test as laid down by Article 133 of the Constitution would apply to a post-Constitution appeal to the Supreme Court against a post-Constitution decree of the High Court reversing a decree of the Trial Court in a pre-constitution suit and answered this question in the negative. It held by a majority judgment that in view of the fact that the suit had been instituted prior to the Constitution the appellant had a vested right of appeal upon the terms and conditions which were in force before the Constitution and consequently the valuation test would be satisfied if the value of the subject matter was above Rs. 10,000/- as required bySection 110, Civil Procedure Code, before its adaptation. In considering this question S. R. Das C. J. in delivering the majority judgment of the Court classified the several categories of persons who were at the date of the Constitution interested in the right of appeal to the Supreme Court into seven classes. The case which their Lordships had before them was category (iv) and the case which we have before us is category (vii), With regard to category (iv) it was pointed out that Article 135 of the Constitution saved the rights of the litigants who fell under that category to file an appeal to the Supreme Court upon the terms and conditions of Sections 109 and 110, Civil Procedure Code, as they stood before adaptation. In the present application we are not, however, concerned with the rights of litigants under category (iv) but we are concerned with the rights of persons under category (vii) because in the present case the suit was instituted on June 23, 1955, long alter the coming into operation of the Constitution. With regard to these persons it was held by the majority judgment that persons falling within category (vii) come under Article 133. In other words the rights of the parties to this application must be governed by Article 133. I cannot accept the argument of Dr. Gupta that a litigant who comes under Article 133 but is unable to fulfil its requirements is still entitled to fall back upon Article 135. In that event Article 133 would altogether lose its force. For these reasons I am unable to accept Dr. Gupta's argument that even if the petitioners in the present case have failed to satisfy the conditions laid down by Article 133 we have still the power to grant a certificate under Article 135 of the Constitution.
11. The last argument advanced by Dr. Gupta is that we should grant a certificate to the petitioners under Section 109(c) of the Civil Procedure Code as it stood after adaptation. Pointed reference was made to the adaptation order made by the President and it was argued that even after adaptation the word 'final order' was not incorporated in Clause (c) of Section 109, Civil Procedure Code, with the result that the petitioners are not required to prove in this case that the order against which an appeal is intended to be taken to the Supreme Court is a final order. Section 109, Civil Procedure Code, as adapted and as reproduced in the official edition of the Civil Procedure Code does not contain the word 'final order' in Clause (c). The anomalous position arising out of the failure to give full effect to the adaptation order was pointed out in the case of : AIR1954Cal424 . That judgment was delivered on September 4, 1953. Thereafter Section 109, Civil Procedure Code, was amended by the Indian Parliament by Act LXVI of 1956 which came into operation on December 3, 1956 and by this amendment the word 'final order' was added to Clause (c) of Section 109. Dr. Gupta however argues that the amendment of Section 109 in 1956 does not affect his right of appeal which must be determined by the law as it stood on the date of the institution of the suit; because the right of appeal is a substantive right. I shall not therefore be justified in taking into account the amendment of Section 109 effected by Act LXVI of 1956; but even apart from this amendment the opening words of Section 109 as adapted make all the provisions of that section subject to the provisions of Chapter IV of Part V of the Constitution. Article 133 occurs in Chapter IV of Part V and consequently all the provisions of Section 109 Civil Procedure Code, are subject to Article 133 and since Article 133 provides for an appeal only against 'judgment, decree and final order' that expression must be read in all the clauses of Section 109. The conclusion therefore is that the petitioners cannot have a wider right of appeal under Section 109(c) of the Civil Procedure Code than they have under Article 133of the Constitution. It is interesting to note that Dr. Gupta who also appeared for the petitioners in the case of : AIR1954Cal424 did not in that case advance the argument that although he might not have a right of appeal under Article 133 from an order which was not a final order he still had that right under Section 109, Clause (c) of the Code. That is expressly stated at p. 47 of the report (CWN); (at p. 432 of AIR). He has however advanced that argument before us and the only answer that I can give is the one which was suggested in that case and that is that under the adaptation order all the provisions of Section 109 are made subject to Article 133 of the Constitution and consequently the petitioners cannot have a larger right under Section 109(c), Civil Procedure Code, than what is conferred by Article 133 of the Constitution.
12. Mr. Advocate General appearing for respondent No. 1 raised a preliminary objection to the effect that on account of the fact that the names of the daughters of the deceased tenant have been expunged from this application under the order of the Court dated August 9, 1959, the application for a certificate has become defective in form. I have already said in earlier part of this judgment that the intending appellants to the Supreme Court are only the three sons and the widow of the deceased tenant. The daughters who are also the heirs under the Hindu Succession Act are not on the record either as intending appellants or as respondents. It is argued by Mr. Advocate General that one of the points involved in the case is whether the requirement of the plaintiff can be satisfied by a partial eviction of the tenants. Under Section 12 of the West Bengal Premises Rent Control Act of 1950 which governs the rights of the parties in the present case the consent of the tenant is necessary to pass a decree for partial eviction; but as all the tenants are not on the record such consent cannot be given. There is some force in this contention but Dr. Gupta appearing for the petitioners has pointed out that under Order 41 Rule 4, Civil Procedure Code, any one tenant can obtain a reversal of the entire decree if the decision proceeds on a ground common to all the tenants. It is doubtful whether the provisions of Order 41, Rule 4 will apply to a case where the consent of the entire body of tenants is necessary to pass a decree for partial eviction; but as we have held against the petitioners on the merits we are not expressing any final opinion on this preliminary point.
13. For the reasons given above the application filed by the petitioners must be dismissed with costs. Hearing fee 10 gold mohurs.
14. I agree.