1. The petitioner, a company, is the defendant in a suit and prays for leave to appeal to the Supreme Court against an order of this Court, passed in second appeal, by which the case was remanded to the Court of appeal below for disposal in accordance with certain directions given.
It claims that the order is a final order and accordingly it is entitled to appeal as of right-under Clause (a) of Article 133(1) of the Constitution.Alternatively it claims that the case comes under Clause (c) and a certificate that it is a fit case for appeal ought to be granted. The argument advanced on the petitioner's behalf has raised certain fundamental questions as to the true scope of Article 133 and its relation to Sections 109 and 110, Civil P. C., as adapted to the Constitution.
2. The suit concerned was brought by the opposite-parties as owners of a certain Touzi which had been created on the resumption of certain lands, previously held under an invalid: lakheraj grant. They claimed damages from the petitioner on the allegation that it had wrongfully extracted a part of the coal underlying five plots of land comprised in the touzi and caused damage to other coal. The petitioner is the lessee of other lands of the mouza where the said five plots are situated under a different proprietor and it has been working a colliery underneath the lands for a great many years.
Its defence was that the plaintiffs had no right to the coal underneath the five plots and that even if they had a right, it had been extinguished by adverse possession of the sub-soil and that the suit, as a suit for damages, was barred by limitation.
In the course of the trial, the opposite-parties conceded that they had no case with regard to three of the plots. As regards the remaining two plots, the trial Court held that the plaintiffs, though owners of the touzi lands settled with them on resumption had no title to the underground coal and that their title, if any, had been extinguished by adverse possession, it held fur-ther that the suit was time-barred.
On appeal, the lower appellate court held in favour of the plaintiffs on the question of title but maintained the dismissal of the suit on the grounds of adverse possession and limitation in regard to which it agreed with the trial court.
On second appeal, a Division Bench of this Court (Das Gupta and Guha Ray, JJ.) agreed with the lower appellate court on the question of title, but reversed its finding on the question of adverse possession and, in the view that the question of limitation had not been properly decid-ed, remanded the case to the lower appellate court for disposal after coming to a proper deci-sion on that question. The orders of the courts below were set aside. 'If', their Lordships direct-ed, 'the suit is not barrsd by limitation, the plain- tiffs' suit should be decreed for such damages as may be found admissible in law. If the suit is barred by limitation, the plaintiffs' suit must be dismissed'. The formal order drawn up on the judgment was an order of remand.
3. The order of this Court, it is obvious, did not affirm the decision of the court immediately below. If the subject matter of the dispute be of the requisite value, the petitioner is entitled to a certificate under Clause (a) of Article 133(1) as of right, provided the order sought to be appealed from is a 'judgment, decree or final order' within the meaning of that Article.
4. The question of valuation presents no difficulty. The plaint was valued at Rs. 2100/-, but as is usual in such cases, the valuation was only tentative, with an offer to pay additional court fees if the amount to which the plaintiffs were entitled, was found to be larger. It appears that in the course of the trial, there was an enquiry by a commissioner as to the quantity of coal extracted from below the disputed plots and the petitioner's own case before the Commissioner was that it had extracted over 17,000 tons. If the extraction was wrongful, the petitioner would be liable for at least the price of that quantity oE coal. The learned Advocate for the opposite parties accordingly conceded that it could not be argued that the amount or value of the subject matter of the dispute in the court of first instance and in the proposed appeal was below Rs. 20,000/-.
5. It was, however, contended that the order sought to be appealed from was not a 'final order' and accordingly no certificate could be granted whether under Clause (a) of Article 133(1) or under Clause (c). The whole argument in the case turned round that contention.
6. It may be useful to see first what questions the contention involves. Article 133(1) is the lineal descendant of Sections 595 and 596, Civil P. C., 1882 and Sections 109 and 110 of the Code of 1908, but a difference is noticeable in the language used to describe the appealable orders and the location of the description. I am using the word 'order' in a general sense.
Under Clauses (a) and (b) of 595, an appeal lay to the Privy Council from 'any final decree', but under Clause (c), an appeal lay from 'any decree', if the High Court certified the case to be a fit one for appeal. The decrees appealable under each of the three clauses were separately describ-ed and in the case of those appealable under Clause (c), no qualifying word was used. By Section 594, 'decree' was defined as including 'judgment and order'. The effect of those several provisions was that under Clauses (a) and (b) of Section 595, an appeal lay from any final decree, final judgment or final order, but in order to be appealable under Clause (c), a decree or judgment or order was not required to be final.
The Code of 1908 maintained the method of giving a description of the appealable order in each clause and also the difference between the first two clauses and the third. Under Clauses (a) and (b) of Section 109 of that Code, an appeal lay from 'any decree or final order', while under Clause (c), an appeal lay from 'any decree or order' provided the High Court certified the fitness of the case for appeal. The decree or order was not required to be final. It may be added, though it is not necessary for the purposes of the present case, that under the Codes of 1882 and 1908, in order that an appeal might lie under Clauses (a) and (b), not only was the decree or order required to be final, but the subject-matter of the dispute was also required, under Sections 596 & 110 respectively, to be of the value of at least Rs. 10,000/-. Clause (c) was free even of that limitation.
7. The Constitution has adopted' a new description of appealable decrees and orders and a new method of applying it to the three clauses. Barring certain differences presently to be noticed, it comoines in Article 133(1), the provisions of Sections 109 and 110 of the Code of 1908, but although that Article also has three clauses, the first two are of a different composition. Read with the opening words of the Article, Clause (a) corresoonds to Clauses (a) and (b) of Section 109 and the first para-graph of Section 110; Clause (b) corresponds to the second paragraph of the last-named section; and Clause (c) corresponds to the same clause of Section 109. The concluding words of the Article correspond to the third paragraph of Section 110. A difference not material for the present purpose is that in the case of Clauses (a) and (b), the minimum limit of valuation has been raised to Rs. 20,000/-.
Another difference, also not material, is that for 'suit' in Section 110 and 'appeal' in Section 109, 'civil proceeding' has been substituted. But the difference which is material is that for decrees or orders appealable under all the three clauses, a common expression, 'judgment, decree or final order', has been used and it has been placed at the beginning of the Article so as to govern all the clauses. The distinction which marked Clause (c) in this regard under the Codes of 1882 and 1908 has thus been removed. In order to be appealable under any of the clauses of Article 133(1), the decision must be a 'judgment, decree or final order' and not any the less so under Clause (c).
8. The effect of the changes made by Article 133(1) is the important question to be decided on the present application.
As to Clauses (a) and (b) of Section 109 before their adaptation, it is now the settled view that no order was final within the meaning of those clauses, if it left the litigation alive, although one or more of the cardinal issues might have been decided by it. If the expression 'judgment, decree or final order' which applies equally to all the three clauses of Article 133(1), means and implies that the decision sought to be appealed from, must be a decree or if an order, must be a final order in the sense of having terminated the litigation, it is clear that while cases which would come under Clauses (a) and (b) of Section 109 have been left unaffected save as regards valuation, the scope of Clause (c) has been materially curtailed.
The right of appeal on a certificate by the High Court, even if the order concerned be not a final order, which had existed at least since 882, has, on that view, now been taken away. On the other hand, if the adoption of the more elaborate phrase 'judgment, decree or final order' means that the decision sought to be appealed from, need not have brought the litigation to an end, the scope of Clause (c) of Section 109 has remained the same, while that of Clauses (a) and (b) has been enlarged.
9. It need hardly be pointed out that which of the two views of the Article is the correct view, is a question of fundamental importance to the citizen. Save as regards the valuation of appealable decrees and orders, the Constitution has not left the main right of appeal to the Supreme Court to the variable will of the Legislature, but has sought to give it stability and, for all practical purposes, permanency by placing it beyond the legislative sphere of Parliament and incorporating it in one of its own provisions. The right cannot be curtailed, nor enlarged, unless the Constitution itself is amended.
The utmost care must therefore be taken to ascertain what rights of appeal the framers of the Constitution purported to guarantee to the litigants when they considered it expedient to define the right of appeal, practically once and for all, and to place it under the protection of the Constitution. Could they have intended to take away any part of the right which had existed for about three quarters of a century or could they not rattier have intended to enlarge the right to a slight extent?
10. Mr. Gupta contended that the right had been enlarged. He recalled that by the decisions in -- 'Rahimbhoy Hibibhoy v. Turner', 18 Ind App 6 (PC) (A) and -- 'Syed Muzhar Husein v. Bodha Bibi', 22 Ind App 1 (PC) (B), the Privy Council had construed Clauses (a) and (b) of Section 595 of the Code of 1882 as permitting an appeal from an order which decided a cardinal point, though it did not terminate the suit. Such an order, it had been held, was a 'final order' within the meaning of those clauses.
It was true that by the decisions in -- 'Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand', AIR 1920 PC 86 (C) and -- 'Abdul Rahman v. D. K. Cassim & Sons' , the Privy Council had since held that an order was not a 'final order' within the meaning of Clauses (a) and (b) of Section 109 of the Code of 1908, unless it finally disposed of the rights of the parties in relation to the whole suit, but the language of the two Codes was different. The Code of 1882 called the decision appealable under Clauses (a) & (b) a 'final decree' & defined 'decree' as including a 'judgment and order'. The Code of 1908 called the decision a 'decree or final order.' The Constitution called it a 'judgment, decree or final order'.
Mr. Gupta contended that by re-introduoing the expression 'judgment' which the Code of 1908 had dropped, the framers of the Constitution had intended to restore the position as it has been under the Code of 1882. An appeal would accordingly lie under Clauses (a) and (b) of Article 133(1) from any order which decided a cardinal point, although it might not terminate the entire suit. The scope of those clauses had been enlarged so as to make them embrace orders which were appealable under the Code of 1908 only under Clause (c) and only with a certificate of fitness.
11. There can be no doubt that the order sought to be appealed from in the present case decided not one, but two cardinal points. It decided that as to underground minerals, a person with whom the lands of an invalid lakheraj grant were settled on their resumption for land revenue, had the same rights as the holder of a zemindary under the permanent settlement. It also decided that when the surface lands over a colliery belonged in separate parts to two different owners, mining operations carried on by a lessee, holding under one of them, in that part of the colliery which lay under the lands belonging to him, could not amount to exercise of possession over the other part of the colliery lying under the lands of the other owners, although the colliery was one.
But although these cardinal points were decided by the order, I do not find it possible to hold that it is appealable under Clause (a) of Article 133(1). of the Constitution.
12. I would readily concede that to hold against Mr. Gupta's contention will be not only to hold that so far as they concern suits, Clauses (a) and (b) of Article 133(1) are no wider than Clauses (a) and (b) of Section 109 of the Code of 1908 before their adaptation, but also to hold that to be appealable even under Clause (c), an order must now be final in the sense of finally determining the suit.
On that view, it is not only the litigant's right of appeal which has been curtailed by the Constitution: the High Court's right to certify a case as fit for a further appeal, if in its judgment it is a case where an appeal ought to be permitted, has also been materially abridged. On the other hand, to accept Mr. Gupta's contention will be to hold that an appeal is now available under Clauses (a) and (b) as of right, not only from an interlocutory order which decides a cardinal point, but also from any interlocutory order by which some question of right as between the parties is decided.
13. The whole argument of Mr. Gupta was based on the re-introduction by the Constitution of the word 'judgment' in the provision for ordinary civil appeals from the High Court. He contended that the use of that word indicated that the framers of the Constitution intended to reproduce as between the High Court and the Supreme Court the position as between the High Court and the Privy Council which had existed under the Code of 1882. I did not understand him to argue that an appeal lay in the present case as an appeal from a 'judgment', but what he contended was that by reason of the presence of the word 'judgment' in the enumeration of appealable decisions in Article 133(1), the order in the present case ought to be construed as a final order.
14. Unfortunately, the question seems to me to be no longer open for argument. The expression 'judgment, decree or final order' which occurs in Article 133(1), occurred also in Section 205(1), Government of India Act of 1935. That section applied to both civil and criminal cases and provided for an appeal to the Federal Court on questions of interpretation of the Act and Orders in Council made thereunder.
In the case of -- 'Hori Ram Singh v. Emperor' , the High Court's order appealed from was an order, directing a Sessions Judge to hear a criminal appeal on the merits upon a reversal of his finding that in the absence of the consent of the Governor under Section 270(1), Government of India'Act of 1935, the prosecution was not maintainable. No question as to the competency of the 'appeal was raised before the Federal Court and the majority of the Judges decided to proceed on the assumption that it was competent. But Sulaiman, J. raised the question for himself and after an elaborate examination of authorities held that no appeal lay, as the order appealed from was neither a 'judgment', nor a 'final order'.
In the case of -- 'Venugopala Reddiar v. Krishnaswami Reddiar1 , the Federal Court held that an order of the High Court deciding that the lower court had jurisdiction to try a suit and directing it to proceed with the trial, was not a final order and then asked itself whether the order was nevertheless appealable as a 'judgment', but as no objection had been taken to the maintainability of the appeal, the question was not decided. The question of the effect of the word 'judgment' and in fact the whole phrase 'judgment, decree or final order' was raised and decided in the case of -- 'Kuppuswami Rao v. The King' . The order there appealed from was an order by which the High Court had decided that neither the consent of the Governor under Section 270(1), Government of India Act, 1935, nor the sanction of the Local Government under Section 197, Criminal P. C., was required to validate a prosecution then pending before a Magistrate and that the case would proceed.
It was held that the order was neither a 'judgment', nor a 'final order' and accordingly no appeal from it lay.
The decision was followed in the case of --'Sridhar Achari v. The King' . The order there concerned was an order by which the High Court had decided that the prosecution, then proceeding, of two persons for an offence against an Ordinance was not bad for the reason that before the charge-sheet was submitted, the Ordinance had expired and that the trial would proceed.
The last case where the import of the words 'judgment, decree or final order' came to be considered was the case of -- 'Mohammad Amin Brothers Ltd. v. Dominion of India', AIR 1950 PC 77 (I). The order appealed from in that case was an order by which this Court, in its appellate jurisdiction, had set aside a winding up order made by a Judge on the Original Side and directed the application for winding up to be kept on the file and to be taken up for hearing after the decision of certain income-tax appeals filed by the appellant company, when only the state of its real indebtedness would appear.
It was again held that the order was neither a 'final order', nor a 'judgment'. 'The collocation of the words 'judgment, decree or final order' in Section 205(1)', it was observed, 'makes it clear that no appeal is provided against an interlocutory judgment or order'. It is necessary to add that by the High Court's order it had also been decided that Section 226(1), Government of India Act, 1935 was no bar to the High Court, on its Original Side, entertaining an application for winding up presented by the Dominion of India for the recovery of revenues due to it from the company.
15-16. The view which the Federal Court took in the above decisions was that the several orders concerned were not final orders, because they did not satisfy the test laid down in the two later decisions of the Privy Council, given with reference to Section 109 of the Code of 1908. They left the suit or proceeding alive, although they might have decided a cardinal point.
A final order, it was further said, was an order on a point which, decided either way, would finally terminate the matter before the court. The orders in the cases converted (sic) were also not judgments, because a judgment, in a civil case, meant a decree and, in a criminal case, it meant the final order in a trial terminating in acquittal or conviction. The word had not been used in the sense of the definition in the Civil P. C., but la the sense of a declaration or final determination of the rights of the parties in the matter brought before the Court. It did not include every order which terminated a proceeding pending in a High Court, so far as that Court was concerned.
In criminal cases it meant the final pronouncement in the proceeding. The absence of the' qualifying word 'final', as used before the whole set of words 'judgment, decree or order' in Clause 39, Letters Patent of the Calcutta, Bombay and Madras High Courts and before the word 'order' in Section 205(I) itself, was immaterial, because the term 'judgment' itself indicated a judicial decision given on the merits of the dispute brought before the Court. If 'judgment' included even interlocutory orders, the category of 'final order' would be wholly superfluous.
The word 'judgment' did not therefore apply to an interlocutory order, either in a civil or a criminal case.
17. If the reasoning of the Federal Court applies to the construction of Article 133(1), it is clearly impossible to accept Mr. Gupta's contention that the order in the present case is a nnal order within the meaning of the Article. Bub he contended that the decisions of the Federal Court were given with reference to Section 205(I), Government of India Act, 1935, which was a new and a special provision, whereas Article 133(1) had a history. It was the successor of Sections 109 and 110, Civil P. C., 1908 and Sections 595 and 596 of the Code of 1882 and in construing it, the words 'judgment, decree or final order' were to be viewed in a different context.
It is true that Article 133(1) is in the chain of the sections mentioned by Mr. Gupta and deals with the ordinary right of appeal from the High Court provided for in those sections. But if the two later decisions of the Privy Council as to the meaning of 'final order' in Section 109 of the Code of 1908 be applicable to the construction of Section 205(1), Government of India Act, 1935, as the Federal Court thought they were, they must be all the more applicable to the construction of Article 133(1) which is the successor of the sections of the Code. It is again true that Section 205(1) occurs in an Act of the British Parliament and, as the Federal Court itself pointed out, the vocabulary there to be found is the vocabulary of English lawyers. But the Federal Court also pointed out that the meaning of the word 'judgment' under the English and the Indian law was the same and the addition of that word furnished no ground to construe the expression 'final order' in a different way.
18. But although any argument on the basis of the expression 'final order' is wholly untenable, it may be said that if the two decisions of the Privy Council and the several decisions of the Federal Court are closely examined, it will be found that there is still room for an argument on the basis of the expression 'judgment'.
Except perhaps in the case of -- 'Mohammad Amin Brothers Ltd. (I)' (Supra), in none of the cases did the order appealed from deal with or decide any question of the rights of the parties. All that it decided was some ancillary, though fundamental, point, such as the jurisdiction Of the Court or the maintainability of the suit or proceeding. Even in the case of -- 'Mohammad Amin Brothers Ltd. (I)', there was no decision by the appellate Court on the merits of the application for winding-up though the decision of the trial Court that a case for winding-up had been made out, was set aside. It may therefore be said that those decisions do not cover a case where some cardinal question as to the rights of the parties has been decided by the order and do not Jay down that from such an order an appeal will not lie as from a judgment, although it may not lie as from a final order.
The term 'judgment', it may be said further, had not to be construed in the two Privy Council decisions relied on, because it did not occur in the Code of 1908 and when in the later of the two decisions Sir George Lowndes observed as to the two earlier decisions in 18 and 22 Indian Appeals that they were decisions under the Code of 1882 where the wording was materially different, he may have meant that for the purposes of an appeal to the Privy Council, the definition of 'decree' under that Code included a judgment. Mr. Gupta did not argue on those lines and I am only indicating a possible argument.
I think, however, that the argument cannot be sustained, because the meaning ascribed by the Federal Court, to the term 'judgment' excludes it. 'Judgment', it has been held, means the final determination of the rights of the parties in the matter brought before the Court which obviously means the whole matter.
19. I confess, however, that on the view taken by the Federal Court, it is difficult to find any use for the word 'judgment' in the enumeration of appealable decisions by the phrase 'judgment, decree or final order.' Every judgment must end in an order of some kind. Certainly the word 'judgment1 has not been used in the phrase in the sense of a statement of the reasons for the order, because an appeal from merely the reasons is meaningless. If what is really appealed from is the order and if an order, in order to be appealable as such, must be a final order, it is difficult to see what kind of decision is provided for by the additional word 'judgment', if an order less than final is not contemplated.
On the other hand, it must be admitted that if by the word 'judgment' an interlocutory order is meant, the category of 'final order' becomes wholly superfluous, because if an interlocutory order be appealable, a final order must necessarily be so and also because the word 'judgment', if it at all means an order, must mean all orders, the expression being unqualified. It may also be pointed out that if it was intended to provide for an appeal from all orders, whether final or not, there appears to be no good reason why the provision should have been distributed over two terms 'judgment' and 'final order', when the use of the single word 'order' would suffice.
It cannot be said that the expression 'final order' was used to indicate orders terminating the proceedings and the expression 'judgment' was used to indicate orders, not terminating the proceedings but deciding some cardinal point, because no qualifying word has been added to the word 'judgment' which would exclude orders which neither decided a cardinal point, nor terminated the proceedings. In the case of orders it is possible to import a qualification because the order is required to be 'final'. If it be said that a qualification of finality is implicit in the word 'judgment' itself, it is not easy to see how, taken in that sense, 'judgment' would in any way be different from 'final order'.
One is thus driven to the view taken by the Bombay High Court in -- 'Jamnadas Frabhudas v. Commr. of Income-tax, Bombay City' : 22ITR150(Bom) (J), that the word 'judgment' 'must not be read in this context in contradistinction to 'decree or final order' '. To take 'judgment' to mean 'order', would be to say that there is a right of appeal from any order.
20. Apart from authority, there appears to me to be some internal indication in the Constitution itself that the word 'judgment' was not intended to bring in orders, not final, or at least that there was no conscious intention behind the use of the word. The phrase 'judgment, decree or final order' occurs in Article 132(1) as well, which is the successor of Section 205(1), Government of India Act, 1935. To Article 132, an Explanation has been added to the effect that for the purposes of the Article, 'the expression 'final order' includes an order deciding an issue which if decided in favour of the appellant, would be sufficient for the disposal of the case.' No such explanation has been added to Article 133.
It is thus clear that the framers of the Constitution did not think that the phrase 'judgment, decree or final order', including therein the word 'judgment', was sufficient to cover orders which decided a cardinal issue but did not terminate the whole suit or proceeding and so they found it necessary to provide specifically for the inclusion of such orders in Article 132. Since they added no similar explanation to Article 133 where the same phrase occurs, the effect must be that orders which do not terminate the suit or proceeding are not within the contemplation of that Article. In the case of -- 'The Election Commission, India v. Saka Venkata Rao' : 4SCR1144 (K), the Supreme Court observed in another context that the object of the Explanation added to Article 132 was to supersede the decision of the Federal Court in -- 'AIR, 1949 FC 1 (G)' and they pointed out that the Explanation had not been made applicable to the same expression 'final order' in Article 133(1).
The observation was made in a case under Article 132, but it is clear that their Lordships accepted the decision in -- 'Kuppuswami's case (G) and recognised that in order to bring in orders, not final, an explanation like that in Article 132 was required to be added to the phrase 'judgment, decree or final order'. Since the framers of the Constitution superseded the decision of the Federal Court only as respects the term 'final order' and did not supersede it as respects the term 'judgment' and since they made even that limited supersession applicable only to Article 132 and did not make it applicable to Article 133(1), no order which does not terminate the suit or proceeding can be said to be covered by the latter Article, either under the description 'judgment' or under the description 'final order'.
21. The above indication of the scope of Article 133 CD is of a negative kind, but I might refer to a positive indication within the Article itself. The concluding paragraph of Article 133 (17 speaks of cases 'where the judgment, decree or final order affirms the decision of the Court immediately below' & the paragraph applies to Clauses (a) and (b). There was a similar paragraph in Section 110 of the Code of 1908, applicable to Clauses (a) and (b) of Section 109, but there the expression was 'decree or final order'.
A decree or an order finally terminating the suit or proceeding may affirm the 'decision' of the court below and the language used was appropriate. But if an order does not terminate the suit or proceeding, it is difficult to conceive of its affirming the 'decision' of the lower Court by which, certainly, an interlocutory order of that Court is not meant. This appears to me to be another indication that orders, not terminating the suit or proceeding, are not contemplated by Clauses (a) and (b) of Article 133(1) and that by the use of the words 'judgment, decree or final order', nothing more than 'decree or final order' has been included.
22. A number of decisions were cited on behalf of the opposite-parties where it had been held that an order, not terminating the suit or proceeding, was not appealable, under Clause (a) of Article 133(1). In our own Court, it was held by Harries C. J. and Banerjee J. in -- 'Chandra Singh v. Midna-pore Zemindary Co. Ltd.' : AIR1951Cal300 (L), that an order deciding that the defendant was not entitled to a set-off of the rents due to him from the plaintiff against the plaintiff's claim of mesne profits and remanding the case for an ascertainment of the mesne profits due and a decree for the amount found was not appealable under Article 133, being neither a preliminary decree, nor a final order. With great respect, the reason given in support of the decision is hardly convincing and leaves the main question untouched.
The learned Chief Justice observed that if the order sought to be appealed from was not a final order, no appeal could lie simply because there was a judgment and he thought it unnecessary to consider what meaning was to be given to the word 'judgment' in Article 133(1). That, I venture to think with respect, was the one question which required consideration, but all that the learned Chief Justice observed was that whatever the meaning of the word 'judgment' might be, it must be some meaning which gave effect to the words following, namely, 'decree or final order'.
The case, however, is an instance where an order was held to be not appealable under Article 133(1), because it did not terminate the suit, although it determined a question of liability. In the case of -- 'Sindhuram v. Krishna Dutta', AIR 1951 Assam 73 (M), the Assam High Court held that an order deciding that an application for delivery of possession in execution of a decree was not time-barred and remanding the case for disposal of the application in accordance with law, was not appealable under Article 133(1), as it was not a final order. Reliance was placed on the decision of this Court in -- 'Chandra Singh's case (L) (Supra) and further reasons were drawn from decisions under Section 109 of the Code of 1908.
In the case of -- 'Ramaswami Chettiar v. Official Receiver' : AIR1951Mad1051 (N), the order sought to be appealed from was of the same kind as in the Assam case and it was held by the Madras High Court that the order was not ippeal-able under any of the clauses of Article 133(1) inasmuch as it did not finally determine the points in dispute between the parties and did not bring the case to an end. The learned Judges, in the course of their judgment, made an elaborate examination of the case-law bearing on the meaning of the term 'final order'
Unfortunately, they ignored the word 'judgment' which is the one word which makes all the difference in the form of expression between Section 109 of the Code and Article 133(1) of the Constitution. In -- ' : 22ITR150(Bom) (J)', before the Bombay High Court, the principal question was whether the opinion given by the High Court upon a reference under Section 66 (1), Income-tax Act was a 'judgment' at all, inasmuch as the jurisdiction of the High Court in such references is purely advisory or consultative, but Chagla C. J. and Tendolkar J. considered the meaning of the phrase 'judgment, decree or final order' and concluded that there was no reason to hold that the framers of the Constitution had repeated the same language as used in Section 205(1), Government of India Act of 1935 with a different intention. So far, therefore, as decided cases go, they have been unanimous in holding that an order, not finally determining the suit or proceeding, is not appealable under Article 133(1).
23. For the reasons I have already given, I can find no ground to take a different view.
24. Mr. Gupta advanced no separate argument under Clause (c) of Article 133(1). Indeed, in view of the fact that the expression 'judgment, decree or final order' is applicable equally to all the three-clauses of the Article, no separate argument under Clause (c) is possible. If the expression 'judgment, decree or final order' does not cover an order which is not final in the sense of not terminating the suit or proceeding, no certificate can now be given under Clause (c) for an appeal from such an order. It appears that the only scope for the application of Clause (c) which is now left is that, under it, a certificate can be given in cases where there is a decree or final order fit for appeal, but the valuation requirement is not satisfied.
25. In the course of his reply, Mr. Gupta referred to Article 135 of the Constitution and submitted that the present order was appealable under that Article.
What Article 135 contemplates is not very clear. It certainly provides for some additional appellate jurisdiction of the Supreme Court, for it says that the Court 'shall also have jurisdiction and powers with respect to any matter to which the provisions of Article 133 or Article 134 do not apply, if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.'
The jurisdiction under the Article is to subsist 'until Parliament by law otherwise provides', but Parliament has not yet provided otherwise. It was accordingly contended that since immediately before the commencement of the Constitution, the Federal Court was exercising the old jurisdiction of the Privy Council under Act 1 of 1948 and Act 5 of 1949 and could hear an appeal from any order, though it was not a final order, upon a certificate given by the High Court under Clause (c) of Section 109 of the Code, the Supreme Court had the same power under Article 135 and therefore a certificate for an appeal from an order, which was not a final order, could still be given. I am unable to accept that contention.
Article 135 gives an additional jurisdiction to the Supreme Court by reference to the old jurisdiction of the Federal Court only 'with respect to any matter to which the provisions of Article 133 or Article 134 do not apply.' The right of appeal to the Supreme Court from a decree or order passed in a civil proceeding is a matter dealt with by Article 133 and; a matter to which the provisions of that Article do apply. If, in the course of providing a right of appeal from decrees and orders, Article 133 has laid down certain requirements which have the effect of excluding some decrees and orders it can by no means be said that the right of appeal from decrees and orders, so excluded, is a matter to which the provisions of Article 133 are not applicable.
Indeed, if the framers of the Constitution really intended to provide an appeal from orders which were not final, it appears to me strange that they should not have done so by Article 133 itself, but should have resorted to the very roundabout procedure of giving the appeal through the old jurisdiction of the Supreme Court and keeping that jurisdiction alive for the purpose.
Mr. Gupta contended that we were not to seek logic in the provisions of the Constitution or any methodicity in their arrangement, for it might well be that after having enacted an Article and passed on, the framers had remembered an omission and made it good by another Article. Even so, I find it impossible to hold that the jurisdiction contemplated by Article 135 is a jurisdiction to entertain appeals from judgments, decrees or orders which fall outside Articles 133 and 134 upon those Articles being applied. The word used in the Article is 'matter' and that term, it seems to me, means not any particular kind of order or orders, but a subject or a field.
In the case of -- 'Ramaswami Chettiar v. The Official Receiver (N)' (Supra), the Madras High Court re-affirmed its view expressed in a previous case that Article 135 contemplated proceedings other than civil and criminal proceedings.
In the case of -- 'Jamnadas Prabhudas v. Commr. of Income-tax, Bombay City (J)' (Supra), the Bombay High Court thought that a reference in an income-tax proceeding was a matter to which the Article applied, though it did not find it necessary to decide whether such a reference was a civil proceeding. Mr. Gupta contended that there was no reason to think that civil and criminal proceedings were excluded altogether from the purview of Article 135. I am not sure that he was right, seeing that Article 133 provides for an appeal from a judgment, decree or final order 'in a civil proceeding' and Article 134 provides for an appeal from a judgment, final order or sentence 'in a criminal proceeding' so that those two fields appear to be covered by those two Articles. Article 132, however, provides for an appeal on questions of interpretation of the Constitution from any judgment, decree or final order of a High Court, 'whether in a civil, criminal or other proceeding.' Proceedings, other than civil or criminal, are therefore within the contemplation of the Constitution and it may well be that Article 135 provides for an appeal from orders in such proceedings in cases where an appeal lay to the Federal Court.
It may also be that the Article would apply even to a civil or criminal case where the decree or order or sentence was passed before the commencement of the Constitution, but before an appeal was filed and the limitation for an appeal had expired, the Constitution came into force. I do not, however, consider it necessary to decide the question of the scope of Article 135 in the present case, because it appears to me to be sufficient for disposing of Mr. Gupta's argument that the right of appeal from decrees or orders in a suit is a matter to which the provisions of Article 133 apply and therefore Article 135 has no application to the right of appeal in such cases.
If Mr. Gupta's argument were to be accepted, a strange result would follow. The right of appeal from decisions of High Courts if the value of the subject-matter of the dispute was Rs. 10,000/-would continue to exist, because there was a right of appeal to the Federal Court in such cases and therefore the provision contained in Article 133(1) that the value must be at least Rs. 20,000/- would remain a dead letter so long as Parliament did not intervene to exercise its power of modifying the jurisdiction conferred by Article 135.
I am unable to assent to a construction of Article 135 which leads to so curious a result and do not find any warrant in the language of the Article for doing so. I am accordingly of opinion that Article 135 does not apply to the present case and is no assistance to Mr. Gupta.
26. I think I ought to refer to the decision of Sarkar J., and myself in -- 'Jute and Gunnl Brokers Ltd. v. Albion Jute Mills Co. Ltd.', 57 Cal WN 675 (O), where I had to repel an argument that Article 133(1) did not provide for an appeal from a decision of a three Judge Bench of this Court, sitting as a Court of first instance on a reference under Chapter 5, Rule 2, Rules of the Original Side.
I pointed out that an appeal in such cases was formerly given by Clause (b) of Section 109 of the Code and that the opening paragraph of Article 133(1) combined the provisions of Clauses (a) and (b) of that, section. I then added that if Article 133(1) did not apply to the kind of order before us, as contended, there would be a right of appeal under Article 135. The head-note of the report omits the condition and represents us as having laid down that Article 135 was a further provision where the right of appeal in the same kind of case had been provided for a second time. The proposition, thus stated, is misleading.
Even so, I must confess that the assumption that Article 135 could at all apply was not correct, and was made by way of accepting a debating point made by the respondents in a case where the question was not fully argued.
27. It remains to refer to the provisions of Sections 109 and 110, Civil P. C., as adapted, to which some reference was made in the course of the argument. With great respect to the advisers of the President, I am entirely unable to understand how, in view of the specific provision for appeals to the Supreme Court in civil cases made by Article 133 of the Constitution itself, there could beany question of adapting Sections 109 and 110 of the Code by way of amending their text.
The scope of adaptation is to bring into conformity and not to add or subtract. No additional right of appeal would be given by the sections of the Code through their adaptation, nor could the right of appeal given by the Constitution be in any way modified. If only a right of appeal of precisely the same extent and character could be provided for, there was no meaning in duplicating the provisions of the Constitution itself in other provisions of an Act of the Legislature. Since the Constitution itself brought into existence the Supreme Court as a new Court and defined its appellate jurisdiction by its own provisions, making it unalterable by any Act of the Legislature save in a specified regard, it is plainly inappropriate that an Act of the Legislature should yet purport or pretend to confer the same jurisdiction on the Court on its own account.
The method of adaptation prescribed by Article 372(2) of the Constitution is that it should be made by 'such adaptations and modifications .....whether by way of repeal or amendment as may be necessary or expedient.' In my view, the adaptation called for of Sections 109 and 110 of the Code was their complete repeal. They provided for an appeal to the Privy Council, but since there was no such appeal under the Constitution, they : stood automatically repealed as soon as the Constitution came into force. There could be no question of their continuing to be in force under Article 372(1).
28. Taking the adaptation of Section 109 of the Code, as actually made by the Adaptation of Laws , Order, 1950, the only material provisions are the following :
(i) For 'Subject to such rules' substitute 'Subject to the provisions of Chapter 4 of Part 5 of the Constitution';
(ii) For 'decree or final order', substitute 'judgment, decree or final order'.
29. By means of this adaptation, a most curious and almost absurd position has been created with regard to Clause (c) of the section. The expression 'decree or final order' occurred in Clauses (a) and (b) of the section and it has been correctly replaced by 'judgment, decree or final order' in con-formity with the Constitution. But the expression occurring in Clause (c) was 'decree or order' and since the adaptation directed is only of the expression 'decree or final order' which does not occur in Clause (c), the language of that clause has remained as it was. The official edition of the Code, as it stands, after its adaptation, still shows Clause (c) of Section 109 as reading 'any decree or order' and it could not show it otherwise, as the adaptation does not touch the clause. The result has been that while the Constitution says that even under Clause (c) an appeal will lie only from 'any judgment, decree or final order', the Code is continuing to say that an appeal will lie under that clause from 'any decree or order.'
It is unfortunate that so accurate a work as Mulla's Civil Procedure Code should, in its 12th Edn., show Clause (c) of Section 109 as reading 'from any judgment, decree or order'. In view of the adaptation actually directed by the Adaptation of Laws Order which is only of the expression 'decree or final order', there is no warrant whatever for adding the word 'judgment' in Clause (c). But even the adaptation made by the editor of Mulla leaves the word 'order' in Clause (c) of Section 109 unqualified keeping to that extent to the narrow limits of the adaptation actually authorised.
30. Mr. Gupta did not contend that although he might not have a right of appeal under Article 133(1) from an order which was not a final order, he still had it under Clause Cc) of Section 109 of the Code. He could not have so contended, because whatever the inconsistency of Clause (c) of Section 109, it is neutralised by the wcrds introduced by the adaptation at the beginning of the section. By those words, the section is made subject to the provisions of Chapter 4 of Part 5 of the Constitution and therefore subject to Article 133 which occurs in Chapter 4 of Part 5. But even if the opening words were not there, Section 109(c) could not possibly prevail over Article 133(1) of the Constitution.
31. It appears to me that by framing Article 133(1) in the language adopted by them, the makers of the Constitution have certainly not reproduced the position as between the High Court and the Privy Council which existed under the Code of 1882. If they intended even to reproduce as between the High Court and the Supreme Court the position which existed as between the High Court and the Privy Council under the Code of 1908, they have not succeeded in doing so. The effect of the words used by them has been to alter the position to the prejudice of intending appellants to the Supreme Court and to take away from the High Courts altogether their power of certifying orders, even if they were not final orders, as fit for appeal, if they thought that the nature of the order justified a certificate.
If the change was deliberately made, I cannot imagine what the reason could be. It could not be a feeling that where the leave to appeal is discretionary, the right to exercise 'the discretion should not be given to another Court, but should rest with the Supreme Court itself because the right to certify under Clauses (a) and (b) that a substantial question of law exists where the decision is one of affirmance and the right to certify a final order as fit for appeal under Clause (c), where the valuation requirement is not satisfied, still remain with the High Court. But it is not profitable to speculate as to why the Constitution makers enacted a certain provision in certain form. All that Courts are concerned with is the effect of the words used.
32. For the reasons given above, I must reluctantly and regretfully hold that no certificate can be granted in the present case under either Clause (a) or Clause (c) of Article 133(1). The application is accordingly dismissed, but in view of the difficulty of the questions involved, there will be no order for costs.
33. I agree.