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The Rajputana Trading Co. Ltd. Vs. Malay Trading Agency - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Matter of 1972, Suit No. 1466 of 1969
Judge
Reported inAIR1974Cal152,(1973)77CALLT635(HC)
ActsConstitution of India - Article 133(1); ;Limitation Act, 1963 - Section 5
AppellantThe Rajputana Trading Co. Ltd.
RespondentMalay Trading Agency
Appellant AdvocateDipankar Ghose, ;S.K. Kapoor and ;P.K. Roy, Advs.
Respondent AdvocateP.K. Das and ;S. Pal, Advs.
DispositionApplication dismissed
Cases ReferredPrakash Chand Agarwal v. Hindusthan Steel Ltd.
Excerpt:
- .....in view the observations of the supreme court in the cases mentioned above, the order must be held to be final order although the dispute between the parties in the appeal still remained pending. 9. mr. pradip das. counsel for the respondent, on the other hand, contended that judged by any test, the order could not be treated or held to be a final order, even though the proceeding in which the order was made was treated or held to be an independent and an original proceeding. he submitted that the controversy between the parties still remained entirely outstanding and those controversies could be adjudicated only in appeal which the court was yet to hear. it was further argued that even assuming that one issue in the appeal, namely, the question as to limitation was finally decided,.....
Judgment:

B.C. Mitra, J.

1. This is an application for a certificate under Article 133(1)(b) of the Constitution for leave to appeal to the Supreme Court. The application out of which this present application for leave to appeal has been made was an application under Section 5 of the Limitation Act. 1963. for condonation of delay in filing the Memorandum of Appeal. The respondent in this application made an application for condonation of delay which was disposed of by a judgment and order dated May 23, 1972. condoning the delay in presenting the Memorandum of Appeal and extending the time to file the same. Being aggrieved by this judgment and order, the petitioner now seeks a certificate for leave to appeal to the Supreme Court. The Appeal Court in making the order of May 23, 1972 came to the conclusions that the respondent in his application for condonation of delay had made out sufficient grounds for condoning the delay in presenting the Memorandum of Appeal

2. There are two points involved In this application, namely, whether the order is a final order and whether the valuation test required by Article 133(1)(b) of the Constitution is satisfied. Mr. Dipankar Ghose, Counsel for the petitioner, contended that the application for condonation of delay was an original and an independent proceeding, and it could not be correlated to the disputes between the parties in the appeal which is still pending He argued that at the time when that application was moved, there was no proceeding pending in this Court, and the respondent's application must, therefore, be treated to be an independent and original proceeding. The contention as raised by the parties in that application, he further argued, was finally decided by the Court, in condoning the delay in filing the Memorandum of Appeal, and therefore, the order made by this Court must necessarily be treated to be a final order. He also argued that a vital question had been decided by the Court in disposing of the respondent's application, namely, the Question of limitation and it was not open to the parties in the appeal new pending, to reagitate that question in this Court. He concluded by arguing that all the requirements of a final order as contemplated by Article 133(1)(b) of the Constitution were satisfied and, therefore, it must be held that the order was a final order.

3. In support of this aspect of the case Mr. Ghose relied on several decisions of the Supreme Court to which I will proceed to refer. The first case relied upon by him was the decision of the Supreme Court reported in Ramesh v. Gendalal Motilal Patni, : [1966]3SCR198 In that case an application was made before the High Court under Article 226 of the Constitution for issue of writs of certiorari and prohibition against reopening of a case, in which the Claims Officer under the local statute had discharged a debt due to the respondent. It was held firstly that a proceeding under Article 226 for a writ of certiorari for bringing up of a proceeding for consideration was a civil proceeding, if the original proceeding concerned civil rights. It was also held that under Article 226 the High Court wag moved to intervene to bring up before itself the records of a case decided or pending before a Tribunal within the High Court's jurisdiction and that a petition to the High Court invoking this jurisdiction was a proceeding independent of the original controversy. It was further held that a decision in the exercise of this jurisdiction whether interfering with the proceeding before a Tribunal or declining to do so. was a final decision in so far as the High Court was concerned because it finally terminated the special proceedings before the High Court, who similarly dismissed the petition and thereby upheld the jurisdiction of the Claims Officer. Relving on this decision Mr. Ghose contended that the application under Section 5 of the Limitation Act was also an independent proceeding and it finally determined the disputes between the parties in that proceeding.

4. The next case relied on by Mr. Ghose was also a decision of the Supreme Court reported in Mohanlal Maganlal v. State of Gujarat. : 1968CriLJ876 . In that case after enquiry under Section 476 of the Criminal Procedure Code a Magistrate had ordered filing of a complaint against the appellant in respect of offences under Sections 205, 467 and 468 read with Section 114 of the Indian Penal Code. An appeal was preferred against the order of the Magistrate and the Additional Sessions Judge held that the complaint was justified but only in respect of the offences under Section 205 read with Section 114 of the Indian Penal Code. A revision application was moved before the High Court and this application was dismissed Thereafter the High Court gave a certificate under Article 134(1)(c) of the Constitution. A preliminary objection was taken before the Supreme Court on behalf of the respondents that the High Court's order in dismissing the revision application was not a final order. The majority view of the Supreme Court was that the order passed by the High Court was a final order within the meaning of Section 134(1)(c) as the controversy between the parties as to whether the complaint in respect of the offences with which the accused was charged was justified or not was disposed of by the order of dismissal and that question was finally decided. It was further held that the finality of that order should not be judged by correlating that order with the controversy in the complaint, namely, whether the appellant had committed the offence with which he was charged. It was also held that the fact that the controversy still remained was irrelevant

5. The next case relied on by Counsel for the petitioner was also a decision of the Supreme Court reported in Asbestos Cement Ltd. v. P. D. Sawarkar : (1970)IILLJ129SC in which it was held that an order dismissing a writ petition challenging the validity of an industrial award was a final order in a civil Proceeding within the meaning of Article 133(1) of the Constitution, although the award disposed of only one of the items of the Charter of demands by the workmen leaving the rest of the items to be adjudicated upon by a subsequent award.

6. Reliance was next placed by Counsel for the petitioner on another decision of the Supreme Court reported in Ahmedabad . v. Ramtahel Ramanand. : (1972)IILLJ165SC . In that case an application was moved under Article 227 of the Constitution and the question was whether the order made by the High Court was a final order. It was held that an order under Article 227 of the Constitution was to be treated as a final order if it finally settled some points affecting the rights of the parties and to that extent, such an order was to be treated as a final order just as in the case of an order under Article 226.

7. Reliance was next placed by Counsel for the petitioner on a Bench Decision of this Court reported in : AIR1969Cal253 for the proposition that the judgment and decree or final order against which a certificate of fitness was sought for must be final and not preliminary or interlocutory.

8. Relying on the decisions mentioned above Counsel for the petitioner contended that all the tests of finality of an order had been satisfied in this case as there remained nothing to be decided so far as the controversy and dispute between the parties in that application was concerned. He submitted that keeping in view the observations of the Supreme Court in the cases mentioned above, the order must be held to be final order although the dispute between the parties in the appeal still remained pending.

9. Mr. Pradip Das. Counsel for the respondent, on the other hand, contended that judged by any test, the order could not be treated or held to be a final order, even though the proceeding in which the order was made was treated or held to be an independent and an original proceeding. He submitted that the controversy between the parties still remained entirely outstanding and those controversies could be adjudicated only in appeal which the Court was yet to hear. It was further argued that even assuming that one issue in the appeal, namely, the question as to limitation was finally decided, and even if this question was treated to be a cardinal issue in the appeal, the order of the appellate Court condoning the delay in filing the memorandum of appeal, could not be treated to be a final order. In support of this contention he relied on several decisions to which I will now briefly refer. The first decision on this question relied on by Mr. Das was a decision of the Supreme Court reported in a case. Tarapore & Co., Madras v. V/O Tractors Export, Moscow, : [1969]2SCR699 . In that case an application for interim injunction was made in a suit restraining the defendants from taking any steps in pursuance of a letter of credit and an interim injunction was granted by the learned single Judge of the trial Court. In appeal a Division Bench of the High Court set aside that order and against this order an application was made for a certificate under Article 133(1)(a) and (b) of the Constitution. The High Court took the view that an order granting interim injunction was a final order as far as the High Court was concerned detrmining the rights of the parties within that lis or proceeding which was independent, though ancillary to the suit and, therefore, a certificate ought to be grants ed. The Supreme Court revoked the order of the High Court granting the certificate and in doing so, dealt with ell the earlier decisions of the Judicial Committee, the Federal Court and also of the Supreme Court on this question. It was held that the expression 'judgment' in Article 133(1) meant a final adjudication by the Court of the rights of the parties and an interlocutory judgment. even if it decided an issue without finally deter-mining the rights and liabilities of the parties, was not a judgment, however, cardinal the issue might be. In coming to the conclusion the Supreme Court reviewed all the earlier decisions on the question of a final order and in particular took into consideration the observation of Mukherjee J. in Mohammed Amin Bros. Ltd. v. Dominion of India. AIR 1950 FC 77. It was also held that if the order passed by the High Court did not finally dispose of the suit or proceeding, and left the rights and obligations of the parties for determination in the suit or proceeding the order was not final within the meaning of Article 133(1)(a) and (b). It was held also that the order did not determine the rights and obligations of the parties in relation to the matters in dispute in the suit Before proceeding to deal with the other cases it is to be noticed that it was contended on behalf of the appellant in that case that the judgment of the Supreme Court in : 1968CriLJ876 (supra), superseded the views taken on this question by the earlier decisions. After taking into consideration the facts involved in that case it was held that no departure was made from the earlier judgments of the Judicial Committee, the Federal Court and of the Supreme Court by what has been said in Mohanlal Maganlal Thacker's case. : 1968CriLJ876 (supra). The next case relied on by Mr. Das was a Bench decision of this Court reported in : [1962]46ITR383(Cal) . In that case an application was made under Section 66(2) of the Income-tax Act, 1922. for an order directing the Income-tax Appellate Tribunal to state a case. This application was dismissed and thereupon an application was made for a certificate under Article 133(1) of the Constitution. It was held that the order was not a final order as it did not dispose of the case finally or affected the rights of the parties to the application and therefore such an order could not be held to be a judgment, decree or final order within the meaning of Article 133 of the Constitution. Relying upon this decision Mr. Das contended that the application under Section 66 (2) of the Income-tax Act, 1922, could not but be held to be an independent original proceeding before this Court because there was no lis pending in this Court and vet it was held that it was not a final order. This contention was advanced by Mr. Das in repelling the argument of Mr. Ghose. that since the proceeding was an independent original proceeding, the order made by the appellate Court condoning delay in filing of the memorandum of appeal must be treated to be a final order. It seems to us that there is a good deal of force in Mr. Das's contention so far as this question is concerned. Mr. Das also relied on a Bench decision of the Madras High Court reported in : AIR1953Mad727 for the proposition that the order made in condoning delay in filing of the memorandum of appeal was a procedural order though it might have far-reaching consequence and adversely affected the rights of the parties. Such an order, it was further held in that case, could not be held to have decided the rights of the parties. It is not necessary for me to go into the question whether the order against which appeal is now sought to be preferred to the Supreme Court was a procedural order or an order which substantially affected the rights of the parties. As I see it, the petitioner in order to get a certificate must satisfy the test that the order is a final order. On the question whether the order is a final order, counsel for the respondent also relied on a Bench decision of the Punjab High Court reported in . In that case it was held that the test for determining the finality of an order was whether the order finally disposed of the rights of the party and that the finality must be a finality in relation to the suit It was also held in that case that the fact that an order decided a matter which was vital, was by itself not material, unless the decision put an end to the suit. Reliance was also placed by counsel for the respondent on another decision of the Supreme Court Premchand Satramdas v. State of Bihar. : [1951]19ITR108(SC) . for the proposition that even though an order was made in an independent and original proceeding, it must be shown that the order finally decided the dispute between the parties in order to be held to be a final order under Article 133(1). In that case an application was made under Section 21 of the Bihar Sales Tax Act for an order directing the Board of Revenue, Bihar, to state a case and to refer it to the High Court, but this application was summarily rejected and thereupon an application was made to the High Court for leave to appeal to the Federal Court and this application was granted. At the hearing before the Supreme Court a preliminary objection was raised on behalf of the respondent that the appeal was not competent and it was held that an order of the High Court declining to call upon the Board of Revenue to state a case under Section 21 of the said Act was not a final order passed in exercise of either original or appellate jurisdiction and was not therefore appealable The next case relied on by counsel for the respondent was a Bench decision of the Patna High Court reported in AIR 1927 Pat 175. In that case an application was made for proceeding in forma pauperis. This application was refused, and thereafter an application was made for leave to appeal to the Privy Council. It was claimed on behalf of the petitioner in that case that the order refusing leave to appeal to the Privy Council was a final order and was therefore appealable under Section 109(a) of the Civil Procedure Code It was held that the order was not a final order as it did not in any way finally determine the rights of the parties and was merely an interlocutory order prescribing the procedure under which the appeal should be conducted. The next case relied on by counsel for the respondent was a Bench decision of this Court reported in : AIR1960Cal77 . In that case, in a suit for ejectment, a decree was passed, an appeal was preferred against the decree to the High Court which remanded the suit for decision on certain questions. On remand the trial Court again decreed the suit and thereafter an appeal was presented to the High Court. In the meantime there was an amendment of the Bengal, Agra and Assam Civil Courts Act by West Bengal Act 16 of 1957 as a result of which the pecuniary limit of the District Judge was raised from Rs. 5,000 to Rs. 10,000. A Division Bench of this Court held that since the valuation of the appeal was Rs. 6,400 the High Court had no jurisdiction to entertain the appeal and directed the return of the memorandum of appeal for presentation to the proper Court. An application for a certificate for fitness under Article 133(1) was filed and it was held that the order of the High Court was not a judgment within the meaning of Article 133 of the Constitution. as the order was an interlocutory order.

10. Upon a careful consideration of the several decisions on which counsel for the parties relied on. I am of the opinion that the order in respect of which the certificate is prayed for. cannot be held to be a final order. The disputes between the parties still remain to be adjudicated upon and no part of these disputes have been touched in the order, except the question of limitation with regard to the filing of the appeal. Mr. Ghose contended that the test of finality, namely. that the order must be final order and that unless the disputes between the parties were finally adjudicated upon it could not be said to be a final order, applied only in those cases where an order was made in the appeal or in an application in a pending proceeding. He submitted that those tests did not apply and could not be invoked in the case of an independent original application as the one in which the order was made by the appellate Court condoning the delay in filing the memorandum of appeal. We do not think that there is any warrant for such a proposition, although it may be said that in some of the cases discussed earlier the application was made in an appeal or in a pending proceeding But quite clearly in some of the other decisions discussed above the application was not made in a pending suit or appeal but was an independent original application. On this question reliance was placed by Mr. Das on a decision of the Supreme Court in Prakash Chand Agarwal v. Hindusthan Steel Ltd., : [1971]2SCR405 . in that case an application was made under Order 9, Rule 13 of the Code of Civil Procedure and a certificate was granted by the High Court A question was raised as to the validity of this certificate and it was held that the Constitution contemplated filing of an appeal by a cerificate only against a judgment decree and a final order of the High Court and it did not contemplate an appeal in a suit which was still a live suit and in which further proceedings were to be taken. In that case the suit was decreed in the absence of the defendant who made an application to set aside the decree under Order 9, Rule 13 of the Code of Civil Procedure. This application was rejected by the trial Court but the High Court took the view that there were valid reasons for setting aside the ex parte decree. It was held by the Supreme Court that as a result of the setting aside the decree the suit was very much alive and therefore the order could not be treated to be a final adjudication of the suit itself. Reliance was also placed by Mr. Das on a decision of this Court reported in : AIR1960Cal203 for the proposition that a proceeding under Order 9. Rule 13. was an original proceeding quite independent of the suit which stood disposed of upon a decree ex parte being passed.

11. In our view the contentions of Mr. Das on the question, namely, that the order is not a final order should be upheld. As I said earlier, the disputes between the parties in the appeal still remain to be adjudicated upon in the ordinary way.

12. This conclusion would have been enough to dispose of this application but since the question of valuation has been gone into, it is necessary to deal with the same. Mr. Ghose contended that valuation test required by Article 133(1)(b) of the Constitution is amply satisfied in this case. He argued that the judgment decree or final order involved directly or indirectly a claim of question respecting property the value of which was RS. 20,000. He also argued that the claim in the suit and in the appeal was for ejectment of the tenant from a premises, the value of which was more than Rs. 20,000 and therefore the decision of the appellate Court condoning the delay in filing of the memorandum of appeal indirectly, at any rate, dealt with the claim respecting property the value of which was Rs. 20,000. Mr. Das. on the other hand, argued that the question of the claim in the suit or in the appeal was not before the appellate Court at all in the application for condonation of delay, he submitted that the only question before the Court in that application was whether the delay in filing the memorandum of appeal ought to be condoned. He drew our attention to the order as drawn up and argued that the only relevant order was that the delay in making the application be and the same is condoned and that the time to title the memorandum of appeal herein be and the same is extended. He argued that the question of the claim to recover possession of the property was not dealt with by the Court at all, and, therefore, the valuation test required by Article 133(1)(b) of the Constitution was not complied with. On the question of valuation a number of decisions were relied on by the parties to which I will briefly refer. Mr. Ghose relied on the decisions reported in : AIR1968Cal316 . AIR 1923 Bom 23 and ILR (1908) Bom 108. Mr. Das on his part relied on the decisions reported in AIR 1965 SC 1410. AIR 1926 Pat 102. AIR 1966 Mys 237. : AIR1969Cal547 . AIR 1970 Goa 104 and : AIR1968Cal316 .

13. Upon a careful consideration, of the decisions mentioned above, upon which counsel for the parties relied, it seems to me that the requirement of Article 133(1)(b) of the Constitution has not been complied with in this case. The Court in dealing with the respondent's application for condonation of delay was not dealing with any claim or question relating to recovery of possession of property at all. The only question before the Court was whether the delay in filing the memorandum of appeal ought to be condoned. It cannot, in my view, be said that in allowing the respondent's application for condonation of delay the Court was indirectly dealing with the petitioner's claim for recovery of possession of property. The contentions of the parties relating to recovery of possession was not before the Court at all the only question before the Court being whether on the facts the delay in filing the memorandum of appeal ought to be condoned. In my view, a certificate contemplated by Article 133(1)(b) of the Constitution cannot be granted by the Court on the facts of this case.

14. For the reasons mentioned above this application fails and is accordingly dismissed with costs.

Deb, J.

15. I agree.


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