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State of Punjab Vs. A.K. Raha (Engineers) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppln. for leave and appeal to the Supreme Court in Appeal No. 40 of 1960
Judge
Reported inAIR1968Cal152
ActsConstitution of India - Article 133 and 133(1)
AppellantState of Punjab
RespondentA.K. Raha (Engineers) Ltd.
Appellant AdvocateAdv.-General
Respondent AdvocateS. Sinha, Adv.
Cases ReferredRaghavacharyulu v. Venkata Ramanuja Charyulu
Excerpt:
- .....of the respondent has raised an objection on the ground that the decree in question was not a final decree. mr. sinha argued that the learned judge in the court of the first instance had merely adjudicated the liability of the defendant for the plaintiffs claims and then referred the plaintiff's claims for enquiry and for accounts before a special referee. mr sinha contended that no appeal lies to the supreme court at this stage.6. we have carefully considered the point raised by mr. sinha and we cannot persuade ourselves to accept this contention. there if nothing in article 133 of the constitution of india which requires a decree to be final before there can be an appeal to the supreme court. in fact, an appeal lies and is very often made from and against preliminary decrees. the.....
Judgment:

A.K. Mukherjea, J.

1. This is an application under Article 133 of the Constitution of India for grant of a certificate for appeal to the Supreme Court.

2. The plaintiff-respondent filed a auit against the State of Punjab for a sum of Rs. 3,35,211/12/ for its alleged dues on a final bill for works done by the plaintiff under a contract with the defendant or, alternatively, for an enquiry or an account of what sums are due to the plaintiff company and for a decree for the sum found to be due upon such enquiry and also for recovery of a sum of Rs. 23,000 by way of damages and a sum of Rs 31,949/12/- on account of excessive deductions or overcharges for prices of materials supplied, etc.

3. The defendant State of Punjab contested the suit and on 7th August 1959, P. C.Mallick, J. delivered the judgment in favourof the plaintiff in which Mallick, J. directed an enquiry as to the amount of the plaintiff's claims as made out in paragraphs 6, 7and 8 of the plaint The plaintiff's totalclaims in paragraphs 6. 7 and 8 were for thesums of Rs. 31949/12, Rs. 3,55,211/12/- andRs. 20.000 respectively. His Lordship directed the decree to be drawn up expeditiouslyand adjourned the further hearing of the suit until the completion of the reference.The consideration of the costs of the suitwas reserved until after the accounts hadbeen taken and tht submission of the reportby the referee.

4. Tht State of Punjab appealed against this judgment and decree. The appeal was heard by a Bench consisting of Bachawat, J. and myself. We dismissed the appeal with costs. The State of Punjab now proposes to appeal to the Supreme Court against that judgment and has applied for our certificate.

5. Before the appeal was dismissed the plaintiff-respondent unconditionally had abandoned certain items of its claims, viz.. (i) a claim for Rs. 3,000 on account of expenditure incurred in constructing godowns (ii) a claim for Rs. 50,000 by way of compensation alleged to be due to it because of unnecessary departmental interference with work. (iii) a claim for Rs. 29,500 on account of compensation for work done by other contractors under work-order basis; and (iv) a claim for Rs. 25,000 on account of losses mentioned in paragraph 4 of the plaint. To that extent, therefore, the iudgment and decree passed by the Court of Appeal was a judgment of variance. Both the parties before us admit this point without any controversy. They also admit 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 Rs. 20,000. In this view of the matter, the applicant should have a certificate for appeal to the Supreme Court almost as a matter of course. But Mr. Sinha appearing on behalf of the respondent has raised an objection on the ground that the decree in question was not a final decree. Mr. Sinha argued that the learned Judge in the Court of the first instance had merely adjudicated the liability of the defendant for the plaintiffs claims and then referred the plaintiff's claims for enquiry and for accounts before a special referee. Mr Sinha contended that no appeal lies to the Supreme Court at this stage.

6. We have carefully considered the point raised by Mr. Sinha and we cannot persuade ourselves to accept this contention. There if nothing in Article 133 of the Constitution of India which requires a decree to be final before there can be an appeal to the Supreme Court. In fact, an appeal lies and is very often made from and against preliminary decrees. The underlying prin-ciple whenever such questions have to be decided was formulated as far back as in 1890 in the case of Rahimbhoy Habibhoy v. Turner, (1891) 18 Ind App 6 (PC) when the judicial Committee of the Privy Council granted special leave to appeal from a decree directiny the defendant to account. The Privy Council was, of course, interpreting Section 595 of the Code of Civil Procedure which in terms gave right of appeal only against 'final decree' Lord Hobhouse who delivered the judgment observed as follows:

'It is true that the decrsee that was made does not declare in terms the liability of the Defendant, but it directs accounts to be taken which he was contending ought not to be taken at all; and it must be held that the decree contains within itself an assertion that, if a balance is found against the Defendant on those accounts, the Defendant is bound to pay it. Therefore, the form of the decree is exactly as if it affirmed the liability of the Defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of the cause, and it is the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the Defendant in such a way that in this suit it is final. The Court can never go back again upon this decree so as to say that, though the result of the account may be against the Defendant, still the Defendant is not liable to pay anything. That is finally determined against him, and therefore in their Lordships' view the decree is a final one within the meaning of Section 595 of the Code.'

I know of no decision where any contrary principle has since then been laid down.

7. In this connection it is perhaps of some significance that the word 'final' no longer occurs in immediate juxtaposition to the word 'decree' in Article 133: the words that are used are, 'the judgment, decree or final order'. We find no reason to doubt that the word 'decree' in Article 133(1) would include both preliminary and final decrees.

8. In the case of Sanyasi Charan Man-dal v. Krishnadhan Banerji, 49 Ind App 108 = (AIR 1922 PC 237) in which the High Court of Calcutta had directed accounts to be taken to ascertain whether any property had been allotted to a minor as his share of ancestral or new businesses owned by a Hindu family governed by the Dayabhaga, the Privv Council dismissed a preliminary objection that was taken to the effect that no appeal lav because the order of the Calcutta High Court was not final

9. In the case of Firm Ganeshadas Kishanji v. Murlidhar. AIR 1956 Madh B 151 the question arose whether Article 133 provides for an appeal against a preliminary decree The Madhya Bharat High Court had no difficulty in holding that both a preliminary decree as well as a final decree are appealable under Article 133 It is pointed out in that judgment that the word 'decree' which occurs in Article 133 and in Section 109 of the Code of Civil Procedure is not qualified by the words 'preliminary' or 'final' The Judges of the Madhya Bharat High Court who heard that application observed:

'.....the test is not whether further proceedings have to be taken before the suit can be completely disposed of; it is whether the rights of the parties have been finally determined by the judgment or order and whether the suit is a live suit not for the purpose of working out the details in accordance with the judgment or order but for the purpose of determining the rights of the parties.

Now in a suit for rendition of accounts and for payment of such money as may be found due after the taking of accounts, the real question for determination is the liability to account and when that has been determined by a preliminary decree against the defendant, the determination of the amount due to a party after the taking of accounts is merely a matter of working out the details in accordance with the preliminary decree'

10. Mr. Sinha relied strongly on the case of Mohammad Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77 where Bijan Kumar Mukherjea, J. (as his Lordship then was) delivering the judgment on behalf of the Federal Court observed that the test for determining the finality of an order is, whether the judgment and order finally disposed of the rights of the parties and that the finality must be a finality in relation to the suit and the fact that the order decides an important and even a vital issue is by itself not material, unless the decision puts an end to the suit. On these grounds the Federal Court held that the particular order which was before that Court was an interlocutory order and the Judgment must necessarily be held to be an interlocutory judgment and that the appeal was in these circumstances incompetent. We do not think that the observations of the Federal Court in this case help Mr. Sinha. The Federal Court was dealing with a case of what was obviously an interlocutory order of the Court of Appeal setting aside an order passed by The Court of first instance which had directed the compulsory winding up of a company and sending back that case to be tried in accordance with certain directions contained in the judgment. For one thing, there had been no decree in this case. Secondly, no rights between the parties had been adjudicated at all. The case was sent on remand for adjudication according to directions given by the Court of Appeal. Against such an order there Could obviously be no appeal to the Federal Court.

11. Mr Sinha also relied on the case of Raghavacharyulu v. Venkata Ramanuja Charyulu : AIR1954Mad406 . In that case the plaintiff had set up an adoption The Subordinate Judge had held that the plaintiff had failed to prove the adoption and had dismissed the suit on that ground. Upon an appeal to the Madras High Court, the Madras High Court held differing from the Subordinate Judge, that the plaintiff had established the adoption. On this basis the Madras High Court remanded the case to be Subordinate Judge for trial of the other sues. One of the defendants then filed an application for leave to appeal to the Supreme Court against that order. The question arose whether the order of remand was a final order within the meaning of Article 133 of the Constitution. The Madras High Court refused to grant a certificate on the ground that the order was not a final order We do not see how this case can help Mr. Sinha The order in this case against which the appellant sought to make an appeal to the Supreme Court did not finally dispose of any rights of the parties. Only one of the issues had been decided by the High Court in favour of the plaintiff, namely the question of adoption. The plaintiff's claims which must have been founded on the fact of adoption were still to be adjudicated. In these circumstances it was not possible to argue that the order of remand passed by the High Court finally disposed of the rights of of the parties. On the other hand, the rights were left outstanding to be determined by the Subordinate Judge. In any case, this was a judgment in which there was no decree. I do not see how that Judgment can support the contention made by Mr Sinha in the instant case.

12. In this view of the matter we find no substance in Mr Sinha's contention. We order as follows: A certificate is granted to the petitioner under Article 133(1)(a) of the Constitution of India. Costs will abide by the result of the appeal.

Sinha, C.J.

13. I agree.


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